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Oral justification of the works council in refusing to give consent?

Oral justification of the works council in refusing to give consent?

Under the German Works Constitution Act (Betriebsverfassungsgesetz – BetrVG), the employer must receive written refusal by the works council to give consent to an individual personnel measure within one week. The written refusal must provide justification. If the justification is insufficient, the works council is deemed to have given its consent. In most cases, the works council‘s justification is straightforward and is often framed with text template elements. In a recent decision, the Federal Labour Court addressed the requirements for sufficient justification.

The Federal Labour Court elaborated that the requirements for justification are different depending on the grounds for refusing consent: if the works council bases its refusal on a violation of legal provisions, it does not have to expressly name these. It merely needs to indicate the content of these potentially violated legal provisions. If, on the other hand, the works council refuses on grounds of unjustified disadvantaging of the potentially affected employee, such assertion must be substantiated with facts in writing.

In the case decided by the Federal Labour Court, the works council refused to give consent referring only to known instances of conflict having precluded the promotion of the relevant employee. Such assertion was held insufficient. The works council must rather name the specific event or type of problem.

Practical recommendations
The decision of the Federal Labour Court provides an important indication that the works council may not assert in mere general terms that the affected employee or other employees in the company were disadvantaged by the personnel measure. Employers should not insist on such specification of the justification, as the Court can disregard this ground for refusal based on considerations of form.

By Bianca Brier

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