For the second time this year, the Federal Labour Court has missed the opportunity to give a view on the subject of Twitter and the works council.
The statement regarding the use of Twitter by the works council, which was planned for 29 July 2020, was thwarted by the withdrawal of the legal complaint by the employer in the case in question, and no decision was made. Prior to this, there should already have been a Federal Labour Court decision in February 2020 on the question of the works council’s co-determination over tweets by the employer. However, this decision also failed to materialise due to the lack of the general works council power to make proposals.
What was the current case about?
Twitter is not only very popular with presidents, celebrities and law firms, but also popular with the works council of a clinic. This works council maintained its own Twitter account and used it as a kind of ‘bulletin board’ to inform employees.
Among other things, the works council tweeted:
‘Conciliation committee #Leave completed, #Leave plan approved. #Newsletter will be published in the areas soon!’
‘Labour Court Gö has rejected #interlocutory injunction (3 BVGa 1/17) We keep tweeting!’
In view of these and similar statements as well as the use of the account in general, the employer initiated a resolution procedure. It took the view that the works council was violating the principle of trustworthy cooperation by using the Twitter account, as it had repeatedly made statements on company matters which were not intended for public use. In addition, the Twitter account was not necessary for the works council to perform its duties.
The works council countered with the argument that the Twitter account did not serve to inform the public, but was instead a contemporary way of informing the workforce: it served as a ‘2.0 notice board’.
The lower courts’ decisions
The Federal Labour Court’s decision had been eagerly awaited primarily because the Göttingen Labor Court (Decision dated 6 November 2017 – Case No. 3 BV 5/17) had ruled in favour of a ban on the works council tweeting if it concerned operational matters on which the employer had not previously made public statements.
On the other hand, the Niedersachsen Higher Labour Court (Decision dated 6 December 2018 – Ref. 5 TaBV 107/17) did not consider such a ban to be permissible because the works council also has a fundamental right to freedom of expression. In this decision, the Higher Labour Court addressed the important question of the fundamental legal capacity of a works council. Since a works council is capable of having its own will and acting independently, it can, according to the Higher Labour Court, also invoke the fundamental right of freedom of expression under Article 5.1 of the Basic Law. However, the questions actually raised remained open, as the Regional Labour Court rejected the employer’s requests on technical grounds. The Higher Labour Court regarded the employer’s imprecisely formulated requests in the action in brought as so-called ‘global requests’ and rejected them. Global requests are where the requests submitted to the court refer to a large number of cases with the consequence that they are imprecise and too generally formulated.
We must therefore continue to wait for the Federal Labour Court’s first decision on Twitter use. Twitter remains a hot topic for employers, regardless of whether the employer itself or the works council tweets. In the interests of trust and cooperation, the parties should coordinate their actions, especially for company matters that are not yet publicly known, so that this information is not given out on Twitter before it is officially announced. Premature or incomplete publication of information can have negative consequences for the company, which may not be desirable for either party.