To all intents and purposes – one should think – the secure working knowledge of any and every personnel officer should encompass the requirement of a prior hearing of the works council and the manner of dealing with the one-week deadline of Sec. 102 Subsec. 1 German Shop Constitution Act [Betriebsverfassungsgesetz, BetrVG] in case of terminations by the employer’s side. That this is not always the case, however, can be seen from the decision of the BAG dated 25 May 2016 (docket No. 2 AZR 345/15).

The sued employer, a company belonging to an internationally operating group with its headquarters in the USA, had intended to end its employment relationship with the Claimant by ordinary termination pending a change in the employment contract. By letter dated 20 November 2012 (Tuesday), received by the works council on the same day, the Defendant heard the works council on the intended termination. By letter dated 26 November 2012 (Monday) the chairman of the works council requested further information, “in order to be able to make a conclusive assessment of the salary losses”. The Defendant did not provide this information. On 27 November 2012 (Tuesday) it handed the Claimant the letter of termination.

The BAG deemed this termination invalid, as it had been conducted without hearing the works council, because it had been declared prior to the expiry of the one-week deadline of Sec. 102 Subsec. 1 BetrVG. The one-week period would not have expired until 24:00 hrs. on 27 November 2012. The participation procedure can be brought to an end by the works council before such time, however, if it renders a conclusive statement prior thereto on the employer’s intention to terminate. However, the employer must be able to derive beyond doubt from the statement that it is a conclusive statement. If the statement is not expressly identified as “conclusive” then, in the opinion of the BAG, there must be special, definite indications which allow the employer to assume that this is indeed the case. In all other events the employer must follow this up with the works council and request clarification if it (the employer) wants to terminate before the expiry of the one-week period. In the case at hand there had obviously been no conclusive statement, and the employer had also failed to follow this up with the works council. 

The BAG’s decision is almost a perfect example of thoughtless action on the part of the employer. The works council naturally cannot prevent the expiry of the one-week deadline with every additional question. However, in the present case it is not apparent why the employer did not wait one further day as a precautionary measure before declaring the termination, for the end of the month had certainly not yet been reached. To avoid having to tread the thin ice of interpreting statements made by the works council (are they conclusive or not?), it is advisable to let the one-week deadline pass before declaring the termination. The only way to help avoid missing a possible termination date is to plan carefully. Hoping for a conclusive premature statement of the works council will doubtlessly only be successful in exceptional cases.