In companies with more than twenty employees who are eligible to vote, the employer must inform the works council in accordance with Section 99 (1) sentences 1 and 2 of the Works Constitution Act (BetrVG) prior to every appointment, transfer, classification and reclassification, submit the necessary application documents to it and provide information about the persons involved. In the case of appointments and transfers, the employer must in particular notify the works council of the proposed job and the intended classification. The works council may refuse to give its consent to personnel measures in certain circumstances, which are exhaustively listed in the law. If it does so, the employer may seek to have the consent replaced by the labour court if it wishes to maintain the measure.
The employer is entitled to provisionally implement the planned personnel measure in the event of refusal of consent or prior to consent being granted, in compliance with the provisions of Section 100 of the Works Constitution Act (BetrVG). If the employer intends to do so, it must inform the works council immediately of the provisional implementation of the individual personnel measure. Furthermore, they must state the objective reasons on which they base this decision.
If the participation procedure proves to be flawed, i.e. consent cannot be replaced, the employer may refrain from implementing the measure. In this case, the original request for consent is terminated. If the employer declares the consent replacement procedure to be completed, the labour court will discontinue the proceedings. However, this does not prevent the employer from initiating the measure and the participation procedure with the works council again.
The Federal Labour Court has now clarified its previous case law on the extent to which ‘distancing’ must be manifested. In an earlier decision, the court stated without further specification that the employer must discontinue the measure. It is necessary that the employee concerned is actually prevented from working – at least temporarily until the initiation of any new participation procedure pursuant to Section 99 (1) and Section 100 (2) of the Works Constitution Act (BetrVG). Consequently, there must be a break (see Grambow/Schumacher, AuA 6/2023, p. 26 et seq.). However, according to the Federal Labour Court in a new decision, this only applies if an unlawful situation existed. If the employer has provisionally implemented the measure in compliance with the requirements of Section 100 of the Works Constitution Act, there is no unlawful situation. In this case, it is not necessary for the measure to be actually terminated. In the event of dismissal or transfer, this means that employment in the (new) position does not have to be terminated.
Conclusion
Mistakes can happen – even when it comes to personnel measures. But that doesn’t mean they can’t be corrected. The key is to take the right steps.
Summary of the key facts
- The termination of a measure results in the replacement of consent
- A measure taken in violation of participation rights may be repeated
- An interruption is not necessary if the employer was permitted to implement the measure on a provisional basis
