Betriebsratsmitglied: Kündigungs- und Entlassungsschutz (protection of works council members against termination and dismissal)

Scope of application

The special protection applies in particular to:

• elected works council members from acceptance of their election until, as a rule, three months after their membership has ended;
• substitute members who move up into the works council because a member has permanently left;
• substitute members who have stood in for an absent works council member for at least two weeks without interruption, until three months after the end of the substitution, provided the employer was notified without delay of the beginning and end of the substitution;
• members of a works council that temporarily continues to conduct business after its term of office has ended.

‍

Legal basis

The special protection against termination and dismissal is based on the following provisions:

• § 120 ArbVG: special protection against termination and dismissal for works council members
• § 121 ArbVG: protection against termination
• § 122 ArbVG: protection against summary dismissal

‍

Deadlines

Key periods in connection with the protected status are:

• Term of office of the works council: generally five years under § 61 para 1 ArbVG;
• Continued protection: generally three months after works council membership has ended;

‍

Rights and obligations

Rights:

Works council members have the following rights in particular:

• termination only with the prior consent of the court (to be granted only where a ground under § 121 ArbVG applies);
• summary dismissal only with the prior – in certain cases also the subsequent – consent of the court;
• protection against restrictions and disadvantages on account of works council activity;
• consideration of the mandate protection clause for conduct engaged in when exercising the mandate that is excusable on weighing all the circumstances;
• assertion that the employment relationship continues where notice or dismissal was declared without the required consent.

‍

Obligations:

The protected status does not give rise to any special additional obligations. The following continue to apply, however:

• the general duties of loyalty, care and work under the employment contract, unless these are restricted by lawful works council activity;
• the duty of confidentiality regarding business and trade secrets;
• the duty to exercise the works council function properly.

‍

Common mistakes

Employers frequently make the following mistakes:

1. termination or summary dismissal without court consent;
2. relying on general grounds for termination: it is not enough that the reason has nothing to do with works council activity. Termination is only permissible on the grounds exhaustively listed in § 121 ArbVG.
3. overlooking the continued protection: the special protection generally still applies for three months after works council membership has ended.
4. overlooking the mandate protection clause: conduct engaged in when exercising the mandate that was excusable in the light of all the circumstances cannot readily be relied on as a ground for termination or dismissal.

‍

Recommended steps

Before taking measures against a works council member, it is advisable to:

1. check the beginning, duration and any continued effect of the protection;
2. in the case of substitute members, establish the duration of the substitution and whether the employer was notified;
3. check whether a ground under § 121 or § 122 ArbVG actually exists;
4. carefully document the relevant incidents and any options for continued employment;
5. as a rule, obtain court consent before declaring the termination or dismissal.