Germany: No Special Protection Against Dismissal for Employees Who Initiate a Works Council Election During the First Six Months of Their Employment

Employees who initiate a works council election in the establishment they are employed in are only granted special protection against dismissal after at least six months of continuous employment.

In a case brought before the Munich Regional Labour Court, an employee hired as a security guard documented his intention towards a notary public to establish a works council in the establishment he was employed in just a few days after starting his new job. Two weeks later, he informed his employer via email about the intention of initiating works council elections. One day afterwards, before any official steps towards a works council election could be taken, he received an ordinary termination of his employment during the so-called waiting period (i.e. the first six months of employment), where employees in Germany do not yet enjoy regular termination protection under German law. The employee challenged the termination in court, arguing the employer had violated the statutory prohibition of hindering works council elections (which can even constitute a criminal offense pursuant to Section 20 para. 1 of the German Works Constitution Act (Betriebsverfassungsgesetz – BetrVG)) and claiming that he had special protection against dismissal as the initiator of a works council election, even though no official invitation to an election meeting had been sent out. The Munich Regional Labour Court hence had to review the validity of the termination.

 

Background

German law provides for special protection against dismissal for employees involved in works council elections, to avoid that employers can hinder such elections by dismissing the initiators. Section 15 paras. 1 and 2 of the German Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz – KSchG) protect election committees, candidates and works council members. Additionally, Section 15 para. 3a protects employees who invite their colleagues to an election meeting or apply for the establishment of an election committee at the labour court from the time the invitation/application is issued until the election results are announced. Section 15 para. 3b extends this protection further to include preliminary works council election initiators and their preparatory actions. It stipulates that the dismissal of an employee who is taking preparatory steps to establish a works council and who has submitted a publicly certified declaration stating his intention to establish a works council is inadmissible if it is based on reasons relating to the employee’s person or conduct, unless there are facts that entitle the employer to terminate the employment relationship for good cause without observing a notice period. Sections 15 para. 3a and 3b were added to the law in June 2021, significantly extending the scope of protection for employees involved in works council elections.

The employee in question referred to the statutory provision in Section 15 para. 3b and his documentation at the notary public, which he had filed just six days after starting his new job.

Key Issues

However, in the case at hand, the Munich Regional Labour Court found that the employee in question was not covered by special protection against dismissal, as he had not yet completed the six months waiting period stipulated in the Protection Against Unfair Dismissal Act. Pursuant to the court, this special protection only applies if the dismissal falls within the scope of the Protection Against Unfair Dismissal Act. The court derived this conclusion from the wording of Section 15 para. 3b of the Works Constitution Act, which referred to dismissals based on “reasons relating to the employee’s person or conduct.” During the first six months of employment, dismissals don’t need a specific reason in order to be justified. Therefore, the court interpreted Section 15 para. 3b of the Works Constitution Act to mean that it only applies to dismissals within the scope of the Protection Against Unfair Dismissal Act that applies after six months of continued employment. The employer had argued in court that the employee was not suitable for the work as a security guard, without this being based on specific reasons relating to his person or conduct.

The court further found that the employee had failed to timely inform the employer of the alleged special termination protection, as he had only argued this protection at a later stage of the court proceeding, several months after his declaration towards the notary public.

The ruling of the Munich Regional Labour Court is not yet binding, the court allowed the appeal to the Federal Labor Court. Whether such appeal will be submitted is not yet clear, as the deadline has not yet expired.

Practical Points

• Section 15 para. 3b of the Works Constitution Act provides for a very wide scope of protection for employees preparing works council elections. Due to this wide scope of the law and the high level of protection the special termination protection offers, some employees have discovered works council election initiatives as a strategic opportunity to create special termination protection and potentially seek a significant severance thereafter. The ruling of the Munich Regional Labour Court is therefore a positive signal for employers as it emphasises the limitations of the special termination protection granted to works council election initiators. It remains to be seen whether the case goes to the Federal Labour Court and the ruling is confirmed.
• Nevertheless, it must be noted that even during the first six months of employment, a dismissal may not be justified with an employee’s efforts to establish a works council or other form of employee representation. While a specific reason is not required during this time, dismissing an employee because he strives for a works council election would violate statutory law.