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Germany – Issuing notice of dismissal to substitute works council members – beware of the pitfalls

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Kliemt.HR Lawyers, the first port of call in employment law for top-class and future-proof advice.
In Germany, when a substitute works council member is appointed to a works council to cover a regular member’s absence, the substitute member benefits from the additional protection against dismissal works council members enjoy. This article outlines the issues for employers to be aware of in considering terminating the employment of a substitute works council member.

To ensure the continued functioning of the works council, the law provides that in the event that an ordinary member cannot attend (for example because of vacation or sick leave) a substitute member replaces the ordinary member. From the perspective of German dismissal protection law, however, such an everyday situation causes significant issues because of the special protection against dismissal works council members enjoy.

This, in particular, includes continued protection for one year after their tenure in the works council has ended. Additionally, the required choice of the correct works council hearing procedure prior to giving notice of termination has to be taken into consideration. The legal consequences of mistakes in this context can be severe, as the choice of the wrong consultation procedure may result in the termination being invalid. In this article we have briefly summarised what pitfalls can occur in practice and what essential aspects must be considered.

Protection from dismissal for substitute works council membersIn principle, substitute members of the works council are to be treated in the same way as ‘ordinary’ employees for termination law purposes. Where the relevant conditions are met, their employment relationships may be terminated ordinarily as well as extraordinarily and the works council has to be consulted beforehand according to section 102 of the Works Constitution Act (Betriebsverfassungsgesetz or ‘BetrVG’). Under this provision the works council must be informed about the intended dismissal and can object to it for certain reasons. However, the works council’s objection has no influence on the effectiveness of the notice of termination.

In contrast to this, according to section 15 (1) sentence 1 of the Dismissal Protection Act (Kündigungsschutzgesetz, or ‘KSchG’), a works council member can only be terminated if the requirements for extraordinary termination are met and the works council has been consulted beforehand in accordance with § 103 BetrVG.

If the works council refuses to give its consent, the employer may apply to the competent labour court to have it overruled.

If a member of the works council is prevented from performing his or her duties in the sense of sec. 25 (1) sentence 2 BetrVG, from the beginning of the event that prevents them from doing so (e.g. vacation) and independently of actual works council tasks, the first substitute member on the list of substitutes takes his or her place. During the period of representation, the substitute member enjoys special protection against dismissal (pursuant to sec. 15 (1) sentence 1 KSchG).

Accordingly, the substitute member’s employment relationship can only be terminated in extraordinary circumstances and with the consent of the works council in the proceedings described in sec. 103 BetrVG. After their period of representation in the works council ends, the situation is as follows: should the substitute member have actually performed works council duties during the period of the substitution, he or she will enjoy retroactive dismissal protection (pursuant to sec. 15 (1) sentence 2 KSchG) for a period of one year after his or her tenure in the works council ends. Extraordinary termination is permissible, but the works council’s participation is limited to a hearing according to sec. 102 BetrVG.

The issue of timingIn practice, employers are faced with the difficulty that, apart from cases of foreseeable, longer absences of ordinary works council members, it is not possible to predict to what extent a substitution will occur before initiating the works council consultation procedure in advance of the planned termination of an employment relationship. Thus the works council may be consulted on a dismissal according to sec. 102 BetrVG, but the substitute member joins the works council before the notice of termination and this substitution is still ongoing after completion of the procedure under sec. 102 BetrVG. This would mean that a consent procedure (sec. 103 BetrVG) would have been the right choice of procedure. In these circumstances, a termination would obviously be ineffective. Even if the termination were to take place after the end of the substitution and the hearing was therefore permitted under sec. 102 BetrVG, it is no longer possible to issue an ordinary termination within the next year because the substitute enjoys retroactive dismissal protection.

Practical note: The agony of choice?Overall, both the possible existence of a substitution and the (planned) time at which the substitute member receives notice of termination are important. These circumstances have a significant influence both on the scope for termination (whether only extraordinary termination is allowed, or an ordinary termination with the proper notice is also permissible) as well as the correct works council consultation procedure. The employer is therefore obliged to consider these contingencies before initiating the procedure.

In addition to any already known absences of ordinary works council members, particular attention should be given to individuals’ positions on the list of substitute members. Even if the specific cause for termination naturally has an effect on the possible approach in individual cases, it is recommended in the first instance to proceed along two parallel tracks with regard to the procedures under sec. 102 and 103 BetrVG. This is especially important in the context of the two-week period in which the notice of termination must be given after obtaining knowledge of the relevant facts on which the termination is to be based (sec. 626 (2) German Civil Code, Bürgerliches Gesetzbuch or ‘BGB’).