This article describes the various powers and rights employers and works councils have to tackle racism and xenophobia in the workplace.
There has been a good deal of media attention in Germany recently around racist incidents at the Daimler production plant in Stuttgart-Untertürkheim and the extreme right-wing works council group ‘Zentrum Automobil’. One thing is clear: racism is and remains a social problem. As a result of the trend towards increasing immigration of urgently needed skilled workers from abroad, the employment relationship is likely to become increasingly fraught. What employers and works councils can and must do, against xenophobic behaviour either by works councils or employees, is briefly outlined in this article.
Employers’ scope for action and legal obligations
There are many ways in which employers can take appropriate action to combat racism. This is because employees violate their contractual obligations when, for example, they disseminate xenophobic statements about colleagues in the workplace. This breach of duty must at least be sanctioned with a warning. In some cases, a behaviour-related ordinary or even extraordinary dismissal will also be possible. Under certain circumstances, however, a transfer of the racist employee to another place of work may be sufficient to restore the working atmosphere.
If there is a working environment characterised by racist behaviour, the employer must not fail to act. Various laws impose duties, both to cease and desist and to act on the employer:
- The employer's duty of care in accordance with s241 (2) of the German Civil Code (Bürgerliches Gesetzbuch, BGB) requires the protection of the interests and rights of all employees (human dignity, general personal rights) at work.
- According to s12 of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz - AGG), employers must also protect their employees from discrimination on the grounds of race or ethnic origin; what is meant here is not only the employer must act to stop racism, but above all take preventive measures to ensure it does not happen.
- According to s4 No. 1 of the Working Conditions Act (Arbeitsschutzgesetz - ArbSchG), work must also be carried out in such a way that risks to mental health are avoided as far as possible or kept to a minimum. Risks relevant to occupational health and safety can also come in the form of psychological stress caused by discrimination and this must be countered by the employer, by taking the necessary measures, s5 (1) and (3) No. 6 ArbSchG.
- According to s75 (1) of the Works Constitution Act (Betriebsverfassungsgesetz - BetrVG), employers and works councils must ensure that there is no discrimination against individuals on the grounds of race or ethnic origin, descent or other origin or nationality.
Even where a works council has extreme right-wing members, the employer's hands are by no means tied. If a member of the works council racially insults his or her employer or a colleague, this can affect the employer-employee relationship, meaning that the usual sanctions, from a warning up to and including dismissal without notice (after agreement of the works council committee under s103 BetrVG), can also be used against that works council member.
In any event, a racist or xenophobic act can be a breach of the individual’s obligations as a work council member under s75 (1) BetrVG. In individual cases this can justify exclusion from the work council under s23 (1) BetrVG. In addition, even before a work council member takes over his or her functions, the employer can take a stand against an extreme right-wing work council candidate and support an alternative choice of candidate, as long as it respects the prohibition on election advertising (s20 paragraph 1 BetrVG) and the prohibition on influencing voters’ choice (s20 paragraph 2 BetrVG).
And what role can a law-abiding works council play?
We have already seen that in addition to the employer, the works council is also subject to the monitoring obligation under s75 (1) of the Works Constitution Act. In order to ensure it also gets active, the German legislator established s80 (1) No. 7 BetrVG for the work council. To that extent, one of the works council’s general tasks is to request measures to fight racism and xenophobia.
The employer and the works council must both be attentive to possible offences and strive for their elimination. The works council has broad scope to act while maintaining the principles of proportionality and of trusting cooperation with the employer. This means it can independently try to influence employees and, for example, organise information campaigns or initiate discussions with superiors. In addition, in the long run the work council can require the employer to prevent employees’ racist behaviour using the means available to it: warning, transfer, notice (see also s104 sentence 1 BetrVG).
According to s104 sentence 2 BetrVG, the works council can also try to implement its wishes through the courts, by the fixing of a penalty payment against the employer in the event of its failure to act.
Also in the context of the works council’s right of co-determination, s99 (2) No. 6 BetrVG offers the work council the right to refuse to consent to recruitment of new employees or a transfer of employees, if there is justified concern, based on the facts, that as a result of racist or xenophobic activity by the applicant and/or employee the peaceful atmosphere in the workplace will be disturbed.
Timely action is a top priority
It is not possible to offer a ‘one size fits all’ model solution to combat racism in the workplace. The particularities of each individual case must always be taken into account and appropriate responses must be found. Racism in the employment relationship is an extremely sensitive issue, which must be addressed with caution, not least because of the serious disturbance to the atmosphere in the workplace and the potential damage to the employer’s image.
It is important:
- to sharpen focus on this issue at an early stage in order to identify extreme right-wing tendencies;
- to create transparency in the company;
- to distance the company clearly from racist attitudes;
- to communicate clear messages on these issues, that employees can use to orient themselves;
- not to hesitate to use the legally available instruments.
In addition to individual and collective sanctions, there is an urgent need to focus on prevention, for example through employee training, codes of conduct, use of the employer's right to speak at works council meetings (s43 para. 2 Sentences 2 and 3 Works Constitution Act) and cooperation with the works council, including potentially by concluding voluntary works agreements (s88 No. 4 BetrVG) on dealing with racism and xenophobia or on measures to prevent such tendencies in the company.