The works council has no right to have the company´s managing director removed, the Higher Labour Court Hamm (Landesarbeitsgericht Hamm, docket number 7 TaBV 11/16) ruled on 2 August 2016.

The works council had claimed to remove the managing director of the employer pursuant to sec. 104 of the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG). The works council alleged that the managing director had deliberately given it false information on several occasions. According to the works council, good faith cooperation with the managing director was therefore significantly disrupted.

Pursuant to sec. 104 of the Works Constitution Act, the works council may request that the employer dismiss an employee who has repeatedly caused serious trouble in the business operation through unlawful conduct or gross violation of the principles laid down in the Works Constitution Act. The works council argued that the term “employee” would include the managing director, under the law of the European Union.

The Higher Labour Court Hamm ruled, as the first instance, in favor of the employer and clarified that sec. 104 of the Works Constitution Act does not apply to managing directors. In the context of sec. 104 of the Works Constitution Act, only the national definition of the term “employee” pursuant to sec. 5 para. 1 of the Works Constitution Act would apply which would not include members of the representation bodies of the company. The definition of employee under the law of the European Union, which can also include managing directors, is only applicable in cases in which the national law implements European law.

The Court clearly confirms earlier case-law by its decision. If a solely national regulation refers to “employees” managing directors do not fall in its scope.