Legal status of members of the Works Council
Members of the Works Council act in an honorary capacity and shall not be bound by any instructions. They are accountable solely to the works/group meeting. They enjoy special legal protection and are subject to certain commitments:
- Prohibition of restrictions and discrimination
- Duty of secrecy
- Granting time off and releasing from duties
- Educational Leave
- Protection against dismissal and termination of employment
- Termination of a works council member
- Dismissal of a works council member
When performing their duties, Works Council members shall not be restricted or disadvantaged. This applies in particular with regard to remuneration, career progression opportunities and occupational training and retraining programmes, but also with regard to possible transfers.
Members of the Works Council are obligated to keep all commercial and trade secrets learned during the performance of duties. These are primarily secrets about technical equipment, procedures and peculiarities of the business which have been identified as confidential.
Members of the Works Council must be granted the time off they need for Works Council activities – this is separate from educational leave. They shall continue to receive full remuneration for this period. If requested by the Works Council, and depending on the size of the company, a certain number of Works Council members in companies shall be released from duties but continue to receive remuneraton.
Each member of the Works Council shall be entitled to a paid release from duties to participate in training and educational events. During a term of office, it is possible to take a maximum of three weeks and three days as educational leave (up to five weeks in exceptional cases). The training and educational events shall focus on imparting knowledge which is relevant for performing Works Council activities.
In small companies (fewer than 20 employees), no remuneration is required from the employer during this release from duties.
The Works Council shall inform the owner of the company at least four weeks before the training starts and together they shall agree on the date of the training.
In companies with over 200 employees, it is possible to take an extended period of educational leave.
A member of the Works Council may only be terminated or dismissed if the court has granted prior consent. Exceptions are made for certain serious grounds for dismissal; in these cases, subsequent consent from the court shall suffice.
In making its decision, the court shall ensure protection of the Works Council members. This special protection for Works Council members starts with acceptance of the vote and ends three months after Works Council membership expires. This protection shall also apply for replacement members, who have represented an incapacitated Works Council member for at least two weeks. The protection shall last for three months after these representative duties have ended. A prerequisite for this is that the owner of the company shall be informed immediately.
The protection against dismissal and termination of employment shall also benefit members of election boards and candidates until the period for contesting an election has expired. The protection starts when his/her intention to stand as a candidate became apparent after appointment of the election board.
In the event of a permanent cessation of business or operational restrictions, the court shall only agree to a termination if the company owner can prove that he/she cannot continue to employ the Works Council member in question – despite his protests – without significant damage.
In addition, the court may only agree to a termination if the Works Council member is rendered incapable of performing the services agreed in the employment contract, is not expected to be capable of working again in the foreseeable future and the company owner cannot be expected to continue to offer employment.
If a Works Council member persistently violates his/her obligations specified in his employment contract and the company owner cannot be expected to continue to offer employment due to work discipline issues, the court is also entitled to agree to the termination.
In the event of a persistent dereliction of duties, the court shall dismiss an action for consent to terminate, if it is based on the conduct of the Works Council member who was in keeping with the mandate and was excusable in consideration of all circumstances ("mandate safeguard clause").
The court shall only agree to the dismissal of the Works Council member if:
- he/she has intentionally misled the company owner about significant circumstances with regard to concluding his/her employment contract;
- he/she was found guilty of a premeditated criminal offence, punishable by imprisonment of a term of more than one year or committed with a view to personal enrichment, provided that prosecution will follow ex officio or upon application of the company owner;
- he/she is disloyal to his/her work or receives undue benefits in his/her work from a third party without the company owner's knowledge;
- he/she has revealed a business or trade secret or is operating a side business which is detrimental to the company without consent from the company owner;
- he/she is guilty of assaults or significant defamation against the company owner, the owner's relatives who either work at or even just visit the company or employees at the company, and a reasonable cooperation can no longer be expected as a result of this behaviour.
In the second and latter example, the dismissal can be granted if consent is obtained from the court at a later date.
Legal status of the Works Council (→ AK)German text
Responsible for the content: Federal Ministry of Labour and Economy