Dismissal of works council members
Works councils have become an integral part of our economic life. Their position in the company and their rights and duties are regulated in particular by the Works Constitution Act. The works council represents the interests of the employees vis-à-vis the employer and works together with the employer for the benefit of the company.
In order to minimize the employer's influence on this body, the elected works council members have a special status and certain privileges. This includes special protection against dismissal. This prevents the employer from dismissing disagreeable works council members in order to better assert its interests. On the other hand, there are also situations in which the employer has a legitimate interest in dismissing a works council member. In this article, we explain how it is possible to dismiss works council members and what needs to be taken into account.
A summary of the most important information on the termination of works councils:
- A member of the works council can only be dismissed by extraordinary dismissal with the consent of the works council.
- An exception to the special protection against dismissal only exists if the entire company or the company department in which the works council member is employed is closed.
- If the works council objects to the dismissal of a works council member, the employer can have the required consent replaced by the labor court.
- Works council members are protected against dismissal for as long as they are actively involved in works council activities. After completion of this works council activity, there is a slightly weaker special protection against dismissal for a further year.
- Works council members can also defend themselves against a dismissal by filing an action for protection against dismissal. If the employer has the required consent of the works council replaced by the labor court, the affected works council member must already defend themselves with all available means in this consent procedure.
- Works council members are also not entitled to a severance payment. However, it is often possible to negotiate a severance payment in return for the amicable termination of the employment relationship.
Do you have individual questions about dismissal under employment law? Get in touch with our lawyers now:
Rudolf-Diesel-Str. 5, 65760 Eschborn near Frankfurt
Table of contents:
- Is it possible to dismiss a works council member?
- Are there exceptions to the special protection against dismissal for works council members?
- What happens if the works council objects to the extraordinary dismissal of a works council member?
- How long does the special protection against dismissal apply to works council members?
- Can a works council member defend himself against dismissal?
- Does a works council member receive severance pay after termination?
Is it possible to dismiss a works council member?
In principle, it is possible to dismiss a works council member. However, the requirements are significantly higher than for normal employees. In addition to the general protection against dismissal under the Dismissal Protection Act, works council members have special protection against dismissal under the Works Council Constitution Act. This special protection against dismissal is regulated in § 15 KSchG in conjunction with § 103 BetrVG. § 103 BetrVG.
This special protection against dismissal excludes ordinary dismissals of works council members. Only extraordinary termination without notice is therefore possible.
However, this is only possible if there is good cause, i.e. the works council member in question has committed such serious misconduct that the employer cannot reasonably be expected to continue the employment relationship until the notice period has expired.
Such misconduct exists, for example, if the works council member,
- steals from or cheats the employer,
- commits assaults against colleagues,
- expresses serious insults towards superiors or the employer.
In addition, the works council must give its consent prior to this extraordinary termination. If the employer terminates the contract before the works council has given its consent, the termination is invalid.
Dismissing works council members is no easy task. It is therefore advisable to conduct such a matter with the support of a competent employment lawyer.
Are there exceptions to the special protection against dismissal for works council members?
Yes, this is possible if the entire company or department in which the works council member is employed is shut down. In these cases, ordinary dismissal of works council members is also possible as an exception. The employer is also not required to obtain the prior consent of the works council. However, the general protection against dismissal under the Dismissal Protection Act applies in these cases, as it does for all other employees.
What happens if the works council objects to the extraordinary dismissal of a works council member?
If the works council objects to the extraordinary dismissal of a works council member, the employer has no choice but to take the matter to the labor court. In this case, the employer can ensure that the works council's approval of the extraordinary dismissal is replaced by the labor court.
If the labor court has replaced the consent of the works council, the employer can subsequently terminate the works council member without notice. All mandatory requirements for dismissals, such as compliance with the written form and the deadline for issuing an extraordinary dismissal (two weeks after knowledge of the reason for dismissal or after approval by the labor court), must be observed.
How long does the special protection against dismissal apply to works council members?
The special protection against dismissal of works council members is linked to their term of office. If there is no existing works council in the company, the term of office begins with the announcement of the election results. If a works council already exists, the term of office of the new works council begins with the expiry of the term of office of the previous one. As a rule, the regular term of office lasts four years.
The special protection against dismissal begins with the term of office of the works council member. However, it does not end abruptly, but in two stages. In the first stage, the special protection against dismissal for active works council members ends at the end of their term of office. In the second stage, the protection against dismissal continues to apply in a weakened form for a further year. Even during this period, ordinary dismissal of a former works council member is excluded. However, in the event of extraordinary dismissal, it is no longer necessary for the employer to obtain the consent of the works council.
If a works council member resigns before the end of his or her term of office, only the retroactive protection against dismissal at the second level applies to him or her from this point onwards.
For elected substitute works council members, the special protection against dismissal only applies for the period in which they are also active as a works council member. This is the case if they permanently replace a works council member who has left or temporarily replace a works council member who is unable to work.
Can a works council member defend himself against dismissal?
Like any other employee, the affected works council member can defend themselves against a dismissal by filing an action for protection against dismissal with the labor court. This action for protection against dismissal must be filed with the labor court within three weeks. However, there is a special feature here that the works council member concerned should urgently observe.
If the works council refuses to approve the dismissal and the employer seeks to have this approval replaced by the labor court, the works council member concerned must defend himself with all means at his disposal during this approval procedure. This is because the labor court already makes a binding decision in these proceedings as to whether there is good cause for the dismissal.
In practice, this means that an action for protection against dismissal is almost hopeless after the labor court has already approved the dismissal. This would only have a chance of success if the employer made mistakes when issuing the dismissal after the approval of the labor court. This would be the case, for example, if the notice of termination did not meet the written form requirements or if the employer took too much time to issue the notice of termination after the labor court's approval.
It is therefore strongly recommended to consult an experienced lawyer in employment law as early as the approval procedure at the labor court.
Does a works council member receive severance pay after termination?
There is no legal basis for a severance payment. However, due to the high hurdles for the dismissal of works council members, it is possible to terminate the employment relationship by mutual agreement in return for payment of an appropriate severance payment. As there is a not inconsiderable risk for the employer of failing with the dismissal or the approval procedure before the labor court, lucrative severance payments can often be achieved with the appropriate negotiating skills.
In order to achieve the best possible result, it is advisable to seek the support of an experienced employment lawyer.
Lawyer for works councils in the event of dismissal
Are you a works council member and have received notice of dismissal? Would you like detailed advice on your options? Do you need a strong partner for a dismissal protection action or for negotiating a lucrative severance payment?
Then get in touch with our law firm in Eschborn near Frankfurt am Main. We will provide you with comprehensive advice on all labor law and tax law issues and will also represent you vis-à-vis your employer and before the labor courts.
Contact the law firm Haas und Kollegen now:
Rudolf-Diesel-Str. 5, 65760 Eschborn near Frankfurt
