The Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on 24 February 2016 (docket number 7 ABR 20/14) that employees who are released completely from work due to works council duties (Freistellung) have to notify the employer when they fulfil their duties outside of the company and report back upon return.
In the case at hand, two members of the works council wanted to visit the works council’s legal counsel in his external office to prepare for a legal dispute with the employer. The managing director demanded detailed information from the works council members regarding the duration and location of their absence. The works council took the view that the employer has no legitimate interest to be notified.
The Federal Labour Court considered the employer’s demands to be partly justified. It was deemed permissible to ask the works council members for notification before departure and on return and for the duration of the absence. The court based the decision on the argument that employees who are released completely from work due to works council duties generally have to be available to discuss co-determination matters with the employer. Thus, the employer must be informed about absences, because the respective works council member cannot act as a contact person at that time. However, the court denied that the employer is permitted to ask about the work council member’s whereabouts during their absence.
The decision is to be welcomed since it clarifies the duties of works council members towards the employer. The Federal Labour Court emphasizes that it is an essential part of full-time works council members’ duties to be available to the employer for discussion. Precise determinations of duties by the courts like this one facilitate daily cooperation with the works council.
