Special Protection against Dismissal for Works Council Members and Other Functionaries

Works council elections will be held in many companies throughout Germany until May 31, 2022. Having already reported on the changes in the German Works Council Election procedure, in this article we would like to draw your attention to the possible special protection against dismissal in connection with the works council elections.

In order to ensure the independence of the works council even in disputes with the employer, works council members enjoy special protection against dismissal under § 15 KSchG (Dismissal Protection Act). In addition, the legislator has also granted special protection against dismissal to a large number of other functionaries. In detail:

Works Council members

The ordinary dismissal of a works council member is generally not permitted during the term of office and until one year after the end of the term of office. During the period of special protection against dismissal, a works council member may only be dismissed extraordinarily for good cause (e.g. in the event of a serious breach of duty) and with the consent of the works council or the approval of the labor court (§ 15 (1) sent. 1 KSchG (Dismissal Protection Act), § 103 BetrVG (Works Constitution Act)). Exceptions to this special dismissal protection exist in the event of the closure of a plant or a department. In this case, ordinary dismissal is permitted at the earliest at the time of the closure. If only one department is shut down, the dismissal is only effective if employment in another department is not possible for operational reasons. The works council’s consent to the ordinary dismissal is not required. Nevertheless, a proper hearing in accordance with § 102 BetrVG (Works Constitution Act) is required.

Representatives (substitute members)

The special protection against dismissal extends not only to works council members, but also to their representatives (substitute members). A case of substitution occurs when a regular works council member is temporarily unavailable, i.e. is unable to exercise the office for legal and factual reasons. The special protection against dismissal begins with the case of substitution and exists for the entire duration of the unavailability of the original member, regardless of whether any works council duties were performed by the substitute member. The retroactive protection against dismissal of one year, on the other hand, only exists if the substitute member has actually performed works council duties.

Election committee members, election candidates and election initiators

The ordinary dismissal of election committee members, election candidates and election initiators is also not permitted. The protection begins with the invitation or application for the election and ends with the announcement of the election results.

Pre-election initiators

The special protection against dismissal for pre-election initiators is new. Persons who undertake preparatory actions for the establishment of a works council now also enjoy special protection against dismissal. According to the explanatory memorandum to the law, a preparatory act for the establishment of a works council is defined as any conduct recognizable to third parties that is suitable for preparing a works council election. This includes, for example, discussions with colleagues in order to ascertain support for the establishment of a works council. Contacting a trade union in order to obtain information on the works council election must also be counted as such a preparatory act. The prerequisite for special protection against dismissal for pre-election initiators is that they have submitted a publicly certified declaration of their intention to establish a works council. The special protection against dismissal applies from the time the certified declaration of intent is issued until the time the invitation to a works council, an election meeting or a board meeting is issued, but for no longer than three months.

Members of the youth and trainee representation and other office holders and functionaries

The special protection against dismissal also applies to members of the youth and trainee representation as well as to other office holders and functionaries who are considered by the legislator to be particularly worthy of protection:

• Data protection officers in a company cannot be terminated without cause (§ 6 (4) BDSG (German Federal Data Protection Act)). Substitute data protection officers also enjoy this special protection against dismissal. Even after they lay down their office, within one year dismissal is only permitted for good cause. Similar to substitute members of the works council, the retroactive special protection against dismissal for the substitute data protection officer only comes into effect if the substitute data protection officer has actually acted as data protection officer (according to the case law of the German Federal Labor Court).
• From the time of their appointment, the ordinary dismissal of pollution control officers is also inadmissible. Here, too, dismissal within one year after they lay down their office is only possible for good cause (§ 58 (2) BImSchG (Federal Immission Control Act).
• The same applies to other company officers such as Major Incident Officers (§ 58d of the BImSchG (Federal Immission Control Act), Water Protection Officers (§ 21 f. of the Federal Water Act, WHG), Waste Officers (§ 59 (1) KrWG (Closed Substance Cycle Waste Management Act), Radiation Protection Officers (§ 70 (6) StrSchG (Radiation Protection Act)). Safety officers and D&I officers, for example, do not enjoy any corresponding special protection against dismissal.
• Political office holders and election candidates enjoy special protection against dismissal at European, federal and state level and may only be dismissed for good cause, but not on the basis of the acquisition or exercise of the mandate. Comparable regulations also exist in some federal states for honorary municipal representatives (e.g. in Berlin (§ 10 BezVG (Berlin District Administration Act)), Hesse (§ 35a (2) HGO (Hesse Community Ordinance)) or Rhineland-Palatinate (§ 18a (4) Rhineland-Palatinate Community Ordinance)).
• Honorary judges may also not be disadvantaged because of the exercise and assumption of their office and thus they enjoy special protection against dismissal (§ 45 (1a) DRiG (German Judges Act), § 26 ArbGG (German Labor Courts Act), § 20 SGG (German Social Courts Act)). If, irrespective of the assumption and exercise of the office during the term of office, facts exist which justify an extraordinary dismissal, such a dismissal may be permissible under certain circumstances (Art. 110 State Constitution of Brandenburg).

In order to prevent ineffective dismissals, it is therefore advisable for companies to inform themselves about possible special regulations and deadlines before issuing a termination notice. We will be happy to assist you in observing the special dismissal regulations.