The Case
The parties to the proceedings (German Federal Labor Court Schleswig-Holstein, decision of 26 February 2019 – 2 TaBV 14/18) were the employer and its works council. The works council had learned that the company produced monthly personnel turnover statistics. In these statistics, personnel costs were broken down: Personnel costs were allocated to the individual operating units. Sick persons were listed and overtime shares of the individual operating units were calculated. The turnover per person was also given.
This brought the works council to the scene. They demanded a handover and inspection of the documents. They were of the opinion that the documents were an instrument for personnel planning and that they had to be involved in this.
The employer rejected the works council’s request. She was of the opinion that statistics were not suitable for personnel planning and therefore were not used for this purpose. The employer could not understand why it was necessary for the works council to inspect the documents. Business figures and sales were documented in the statistics. They are subject to company and business secrecy.
Personnel planning – what is required?
After the Labor Court had rejected the application, the Federal Labor Court did the same. Accordingly, the works council has no claim to the publication of the statistics.
It is true that § 92 of the Industrial Relations Law (BetrVG) concerns personnel planning. The works council is also accordingly to be informed about
- the prospects for staff requirement,
- staff coverage, and
- the use of personnel.
However, in this case the information has to be provided on the basis of the documents the employer itself uses in its personnel planning. The employer, however, used the collected data to be able to draw a retrospective comparison with the costs of the previous year and to be able to understand any possible inconsistencies. Thus, the court did not see any use in personnel planning. The court could not see an internal connection between the collection of statistics and future personnel developments.
The Federal Labor Court also rejected the claim in other respects. In principle, the works council is entitled to request information in order to make proposals for the introduction and implementation of personnel planning. However, it has to explain why it considers the information necessary. Only then is the employer obliged to provide the information. In this particular case, the works council could not convince the court: Why should it be necessary to provide exactly this information from the personnel turnover statistics?
But the decision does not release the employer from its obligation to disclose information. This is also the case if the information is part of the statistics, that must be made available to the works council because of other participation rights.
Handling Employer Statistics in Practice
The decision reported here is legally valid. This is a very positive signal for companies. The right to information, which is otherwise often used as an all-purpose weapon of the works council, did not apply in this case.
The employer must continue to put the works council in a position to be able to make proposals for personnel planning. But as the employer retains the final decision-making authority over personnel planning, the works council needs to explain why it needs the information. For employers, it is worth explaining why the requested information does not allow any conclusions to be drawn about personnel planning. Only then will a request for information from the works council be rejected.
