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Germany: Release of Works Council Member via Termination Agreement does not affect WC Membership

The Hessian State Labour Court had to decide on an application for injunctive relief filed by a works council member who requested that his employer tolerates him performing work for the works council and grants him all necessary digital and physical access to company property as required for this purpose.

The works council member and his employer had concluded a termination agreement on 30 March 2020, whereas the employment of the works council member shall end on 31 December 2021, but the works council member shall be irrevocably released from his contractual duties as of 1 April 2020. The termination agreement contained no express wording regarding the employee’s works council  membership. The employee continued performing work for the works council despite the release. When the employer blocked the employee’s access to the IT network and the business premises, the employee filed for injunctive relief arguing that the release had not affected his position as works council member.

After the labour court ruled in favor of the employer, the court of appeal overturned the verdict and found that the irrevocable release had not terminated the employee’s works council membership.

Under German law, a works council membership terminates, amongst others, with termination of the employment contract or with the loss of eligibility for the office. Termination of employment in this sense means the time of legal termination of the employment relationship. This was 31 December 2021 pursuant to the termination agreement at hand.  The court further found that the employee had not lost his eligibility for the office due to the release. This would be the case if the contractual obligations were mutually suspended, for example during the release period of phased retirement, which effectively ends any operational integration of the employee. Paid release, however, only suspends the employee’s obligation to work but maintains the employer’s obligation to pay the agreed remuneration. Besides that, operative integration does not require actual performance of work duties.  Therefore, the court found that the employee was still able to perform his office as a works council member despite the release agreed in the termination agreement. The employer was thus ordered to tolerate the employee’s actions as a works council member and to grant him access to the internal IT network and company premises for this purpose.

This ruling shows that a termination agreement with a works council member always needs to include express wording as to when the employee shall resign from his office. It is often the employer’s particular motivation for concluding a termination agreement with a works council member, which often entails a significant severance payment, to end the works council membership immediately upon conclusion of the agreement. Therefore, it is important for employers to be aware that concluding a termination agreement and releasing the employee from his regular duties triggers no automatism regarding a termination of the works council membership without any further express wording in the termination agreement.


For more information on these articles or any other issues involving labour and employment matters in Germany, please contact Dr. Tobias Pusch (Partner) of Pusch Wahlig Workplace Law at pusch@pwwl.de or visit www.pwwl.de.