The works council has to be informed and consulted by the employer about any planned termination. For a correct hearing as required by section 102 of the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), however, it is not necessary for the employer to notify the works council about whether the notice period has been adhered to or whether special protection against dismissal is in place. This was decided by the Federal Labor Court (Bundesarbeitsgericht, BAG) in a ruling on May 7, 2020 (Ref.: 2 AZR 678/19).
The Case
In the case at hand, the employer had terminated a design engineer without notice and, alternatively, given him an ordinary notice of termination. The employer had consulted the works council on the termination, which gave its consent.
Works Council Not Duly Consulted
The engineer filed a suit against the dismissal for lack of grounds for dismissal. According to section 626 paragraph 2 of the German Civil Code, an extraordinary termination without notice for a compelling reason must take place within 2 weeks of the person entitled to give notice being made aware of the facts significant to the termination. The employer did not comply with this notice notice period, the engineer claimed. Furthermore, the employer had notconsulted the works council in a proper manner because the works council had neither been informed about the notice period pursuant to section 626 paragraph 2 German Civil Code, nor about the existing special protection against dismissal. The notice of termination was invalid, the engineer stated.
Federal Labor Court Annulled Judgment
In the first two instances, the plaintiff was successful, however, the Federal Labor Court overturned the of the Higher Labor Court’s decision and referred the case back to the Court of Appeal for review. It determined that, contrary to the plaintiff’s opinion and the decisions of the previous instances, the employer did not have to inform the works council about an existing special protection against dismissal, nor did he need to make statements regarding compliance with the two-week notice period.
According to the Federal Labor Court, an employer is obliged to consult the works council and inform it of the reasons for the termination of an employment contract prior to each termination, in accordance with section 102 of the Works Constitution Act. Otherwise, the termination is invalid. However, the necessary content of the works council notification depends on the meaning and purpose of the participation right, which is puts the works council in a position to influence the employer properly and, if necessary, also in favor of the employee. Nevertheless, the works council hearing does not serve to examine whether the planned dismissal meets the legal requirements. In this respect, the employer’s procedural burden of proof is different from its obligation to notify the works council.
No Details on Compliance with the Notice period
As compliance with the notice period is not one of the reasons for termination within the meaning of section 102 of the Works Constitution Act, the employer does not have to give any information regarding the compliance with the notice period. The committee does not need to be enabled to examine the validity of the intended termination. Nevertheless, this does not mean that the employer does not have to indicate when the termination event occurred. Only then is it possible for the works council to assess the validity and significance of the reasons for termination.
With respect to the intended extraordinary termination without notice, the works council does not need to be notified about a possible special protection against dismissal. In this regard, the works council would not be deprived of making any objections either. It could oppose plans of extraordinary terminationswithout notice in both cases (ordinary terminability and ordinary non-terminability) to the same extent because the employer can be expected to observe the ordinary (real or fictitious) notice period.
The Federal Labor Court referred the case back to the Higher Labor Court, which now has to decide on the effectiveness of the termination.
For a duly convened works council hearing in the event of a planned extraordinary termination without notice, it is not necessary for the employer to provide details on the notice period pursuant to section 626 paragraph 2 German Civil Code. Moreover, the employer does not need to inform the works council about a possibly existing special termination protection. However, this is not easily transferable to extraordinary terminations with a social expiration period.
