March 2018 is getting closer and works council (re)elections will again be on the agenda in Germany. We started this three-part blog last November with an overview to this topic and the second part highlighting the election proceedings. See link to November 7, 2017 blog and link to January 11, 2018 blog. In this final Part III, we briefly address the potential risks of reruns of elections due to mistakes and provide you with an overview of the special termination protection resulting from works council elections.
Avoid mistakes – elections can be challenged or even be null and void!
German employers are well advised to closely monitor the election proceedings. In the event of substantial breaches of the election process, the elections can be null and void, i.e., if such serious mistakes occurred that no democratic process was granted, or in less obvious breaches, elections can be challenged in court within two weeks of the announcement of the election results.
Who can file the challenge – and what are the risks?
The employer, three employees, or a union having members at the operational site are entitled to file a respective application with the competent local labor courts. If the court holds that the election process was breached, then the works council elections must be repeated.
Court proceedings challenging the elections are time consuming and costly. Above all, they create uncertainty at the operational site. Questions may arise, for example, whether meanwhile concluded shop agreements are valid and binding. Also productive operations at the shop floor will be seriously affected, with mistrust and a hostile atmosphere as the result.
Special termination protection
German law grants special and additional termination protection to a wide group of employees who were involved in the election proceedings. The underlying idea behind it is to ensure that no one will be discriminated against by calling for elections or otherwise being actively involved in the proceedings. As a general rule, only terminations for cause and with the consent of the works council are legitimate and valid. An ordinary termination is prohibited in the following cases:
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Members of the election committee (Wahlvorstand): they are protected for a term of six (6) months beginning with their appointment and ending six (6) months after the elections results are announced;
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Substitute members of the election committee (Ersatzmitglieder): provided they were called on duty, they have the identical protection as regular members because any termination could be interpreted as illegal influencing the proceedings;
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Candidates (Wahlbewerber): they are protected for a term of six (6) months beginning with their candidacy and ending six (6) months after the elections results are announced;
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Works council members (Betriebsratsmitglieder): once elected, they are protected during the entire term of their office plus one (1) additional year subsequent to their term in office;
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Substitute members of the works council (Ersatzbetriebsratsmitglieder): once they are called on duty and replace a member, they are protected during their substitution term and for one (1) additional year subsequent to their substitution term.
German law provides extensive protection to a wide group of employees. This might result in individuals trying to take advantage of the rules by actively creating substitution cases in order to extend the special dismissal protection to an even wider group of employees beyond the members of the election committee, candidates, or actual works council members. Employers are cautioned to carefully review and evaluate incidents, which appear to be mere “fake” substitutions.
With all the complexity, employers should be aware of potential pitfalls of works council elections to avoid mistakes which may result in situations where the entire election may be contested or – in the worst case – may be void. Mistakes may easily lead to unnecessary debates, time consuming disputes and costly reruns of elections.
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