By Sandra Fredebeul, Firm: KLIEMT.HR
A recent ruling held that the works council cannot require an employer to communicate with it in German, as long as the employer ensures that both sides can understand each other clearly.
Can the works council require an employer to only speak to it in German? Does the works council have a right to ‘simple’ communication with the employer? Can the works council impose its ideas about the ‘right’ company language on an employer? A recent decision by the Nuremberg Labour Court provides some clarification.
What was the background to the decision?
An international fashion company with 80 branches and approximately 4,500 employees in Germany employed a branch manager in Nuremberg who hardly spoke any German. The employer did not have any guidelines regarding language use in the company. Among other things, the branch manager had conducted job interviews and personnel discussions in English. In addition, the short daily staff meetings were conducted in English when the branch manager was present.
The works council claimed that although part of the English communication had been translated by a branch manager, this had only been done when she found it easy. The works council argued that the employer had violated the requirement to use the German language, thereby infringing its co-determination rights.
The employer argued against this, arguing that the works council's request would ultimately mean that only German-speaking employees could be appointed as managers. This, in turn, would be an inadmissible encroachment on their entrepreneurial freedom and would discriminate against the branch manager on the grounds of her origin. In addition, it stated that it was guaranteed that someone would always translate for the branch manager.
No hindrance to works council activities if the manager lacks language skills
The works council cannot demand that the employer or its representatives only communicate with it in German. There would be no significant impediment to the work of the works council as long as it was ensured that all statements made by the branch manager were made in a form understandable to the works council members and that statements made by works council members could also be understood by the branch management.
This would mean that written statements are given to works council members in German they members do not understand sufficient English. Who actually writes the text in German, (i.e. whether it is translated by someone) is irrelevant. After all, it is ultimately to the employer’s detriment if something is possibly lost in translation: it is the understanding of the person who speaks German and receives the translation or (in the case of translation from German to English) carries out the translation for the works council members that counts.
No works council right to ‘simple’ communication with the employer
The Nuremberg Labour Court understood that communication with the branch management is difficult if the management does not speak German and not all works council members speak (sufficient) English. Ultimately, however, it stated that this should be assessed in the same way as if the employer commissioned someone to represent her in the branch who was not allowed to make any decisions and had to ask the management first. Here, too, the direct exchange of information would be difficult. However, this too would have to be accepted by the works council members. They could not require that discussions were only held with the person who was authorised to make decisions.
Communication in a foreign language can facilitate works council work
Ultimately, it could not be ruled out that the work of the works council could also be facilitated by communication in a language other than German. In an international fashion group with many non-German-speaking employees, it is not unlikely that a works council member would speak better English than German and meaning that communication in the foreign language could be easier.
Practical tip (not just for international employers!)
This decision shows that employers can also use foreign language-speaking managers as a point of contact with the works council. Even if the works council may complain about a lack of German language skills as long communication between the works council and the employer is mutually understood and ensured, this is not an obstacle.
In order to guarantee a trust and cooperation with the works council, however, it is advisable to provide the works council with a German-speaking contact person in addition to the foreign language-speaking manager, who can provide appropriate translations, if the works council does not have (sufficient) command of the foreign language.
LAG Nuremberg (decision of 18 June 2020 - 1 TaBV 33/19