On 16 July 2015, the Federal State Labour Court (Bundesarbeitsgericht) ruled that an employer must inform the works council thoroughly and honestly about the circumstances which actually determined its decision to terminate an employment relationship (docket number: 2 AZR 15/15).
In the case at hand, an employee was dismissed due to illness. According to the legal requirement as set out in sec. 102 Works Constitution Act (Betriebsverfassungsgesetz) the employer presented a summary of the employee’s previous days of absence before notifying the termination. Within this information letter the employer also asserted that the employee had given up medical treatment early. It was a matter of dispute between the parties as to whether the employer was aware of the fact that the employee gave up treatment before its end.
At the Federal Labour Court, the case reached the second instance in order to resolve this factual dispute, but a general principle was laid down as follows: An employer does not comply with its duty to inform the works council accurately of an intended termination if the employer passes on information which it knows is false or misleading. Consulting the works council enables the body to step in on behalf of the employee and influence the employer’s decision making. Therefore, the works council must only receive the information on which the employer actually bases its decision to dismiss the employee. Intentionally passing on false information might influence the works council not to act.
Against this background, if an employer passes on wrong or incomplete facts about the situation, the information of the works council is deemed insufficient and this will lead to the invalidity of the termination in any event . The same applies if the employer passes on facts about the employee, which are objectively incorrect and which the employer also considers to be incorrect. By passing on such unverified information, the employer pretends to possess more information than it actually does. On the contrary, it shall not be deemed as a breach of sec. 102 of the Works Constitution Act (Betriebsverfassungsgesetz), if the employer passes on unfounded facts where the employer is unaware of their inaccuracy.
As such, an employer should check very carefully the facts which are to be presented to the works council as basis for an intended termination. It must not pass on information which is probably not correct even if such facts shall not influence the employer´s decision to dismiss.