In its judgment of 20 September 2012 (ref. no. 6 AZR 155/11), the Federal Labor Court considered that a possible contravention of the formal requirement that the employer must provide information to the works council in the event of mass redundancies (Section 17 (2) KSchG [German act on protection against unlawful dismissal]) may be remedied by a final statement made by the works council if the employer has provided it with the information required by the act in an unsigned text.

In the case underlying the decision, the employee filed an action against his dismissal. He was dismissed due to a reconciliation of interests between the general works council and the employer’s insolvency administrator, the defendant in this proceeding. The reconciliation of interests implied that the works council had been informed and participated within the scope of the negotiations according to Section 17 (2) KSchG and the corresponding proceeding had thus to be considered as concluded. The plaintiff thought that the defendant insolvency administrator had failed to comply with his duty to provide information to the works council and that the dismissal was thus ineffective. The action he filed against that remained unsuccessful in all three instances.

The Federal Labor Court could not find that the Defendant had failed to comply with the requirement of providing the information according to Section 17 (2) KSchG. It could be left undecided, it stated, whether the duty to provide information required the statutory requirement of written form as provided in Section 126 (1) BGB, since a possible breach of the requirement of written form had in any case been remedied by the final and effective statement by the general works council within the scope of the reconciliation of interests. The information required for the duty to provide information had only to be documented and forwarded to the works council in a text which did not require a signature. That would sufficiently make allowance for the purpose of the requirement to provide information, namely giving the works council the opportunity to submit suggestions to avoid mass redundancies, it argued. The works council’s final statement was an indication, it stated, that it was no longer in the position to submit further constructive suggestions.

The Federal Labor Court’s decision does not clarify in which form the employer has to provide and document the provision of information according to Section 17 (2) KSchG. However, it is welcome news that the Federal Labor Court considers that a breach of the form requirements may be remedied in cases where the works council makes a final statement as to the information provided.