Employers and domiciliary rights
Situations occur in which employers have a legitimate interest in preventing certain employees from entering company premises or buildings. A ban on entering the premises is an obvious step.
However, arbitrarily banning employees from the premises is not possible, especially in the case of an ongoing employment relationship. In this case, banning an employee from the premises is only effective if the employer’s legitimate interest in the ban significantly outweighs the employees employment interest. A ban from the premises may be appropriate, particularly in the event of serious breaches of duty in the employment relationship. Other cases include termination without notice or when the employee has been released from their duties and also during ongoing dismissal protection proceedings.
Beyond this, banning a works council member from the premises is subject to additional requirements, as is to be expected.
Works council chairman forged documents
A catering company for airlines at Frankfurt Airport banned an employee, the chairman of the works council, from its premises. He had forged documents when he illegally stamped works council documents using a receipt stamp without being authorized to do so.
The employer filed a criminal complaint, issued a ban from the premises and initiated proceedings before the labor court to remove the chairman from office in accordance with the Works Constitution Act (BetrVG).
The works council chairman opposed the ban and argued that he was only able to fulfill his duties as a works council member with unhindered access to the offices and the company premises. He demanded that he be granted access again.
Ban against works council member ineffective
The chairman of the works council won the case before the Frankfurt am Main Labor Court and also before the Hesse Higher Labor Court:
The Works Constitution Act (BetrVG) stipulates that employers may not disrupt or obstruct works council members when performing their duties. If they do so, companies even face a risk of criminal liability pursuant to Section 119 of the Works Constitution Act (BetrVG) if a corresponding criminal complaint is filed. According to the court, banning a works council member in office represents an obstruction of the works council’s work. The employer should first have waited for the chairman’s legally binding removal from the works council (removal from office proceedings, Section 23 (1) sentence 1 of the Works Constitution Act (BetrVG)). Only then should the works council member have been banned from the premises. The ban could only be effectively imposed before the end of the removal from office proceedings if the breach of duty were so severe that trusting cooperation between employer and employee had been unreasonably impaired. Nor was the criminal nature of the conduct the central issue.
The court did not see such a severe violation in this case. Therefore, the ban from entering the premises was invalid and the works council chairman had to be allowed access to the company again.
Removal from office proceedings help
If an employer intends to ban a works council member from entering the company premises due to serious misconduct, it is essential to examine in advance whether this is permissible pursuant to Works Constitution Act (BetrVG). In light of this ruling, employers are advised
- to promptly initiate removal from office proceedings before the labor court, even in the event of serious breaches of duty by a works council member and
- to refrain from banning the employee from the premises until the works council member has been (provisionally) removed from the works council via legal action.
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Summary of the key facts:
- Employers can also ban employees from the premises during an ongoing employment relationship.
- Banning a works council member or the chairman of the works council must not constitute an obstruction of the works council’s work.
- To prevent claims of obstruction when banning a works council member from the premises, employers first need to successfully (provisionally) remove the member from office in accordance with Section 78 of the Works Constitution Act (BetrVG) before issuing the ban.