On 9 June 2016 the Federal Labour Court (Bundesarbeitsgericht) decided that incorrect information to the Works Council with regard to a planned mass dismissal can be healed by a final statement of the Works Council (docket number: 5 AZR 405/15).
After deciding to close the business down, the Works Council was informed about the planned mass dismissal but not about the particular working groups which were affected. The parties signed a reconciliation of interests in which the Works Council confirmed that it had been fully informed and that it regarded the consultation procedure as completed. The plaintiff’s employment contract was thus terminated after the employment agency was notified about the mass dismissals. The plaintiff claimed that the termination was unlawful due to a faulty consultation procedure.
The Federal Labour Court regarded the termination as lawful. The employer is generally obliged to inform the Works Council about the affected working groups according to sec. 17, para. 2 sentence 1 number 2 and 3 of the Employment Protection Legislation (Kündigungsschutzgesetz). Missing information can however be healed by a final statement of the Works Council when dismissing all employees due to a closure of the business. Such a final statement has to make clear that the Works Council regards its rights as having been fulfilled, especially its right to obtain information.
Since the judgment was made with the background of a closure of the business, employers have to remain thorough during the mass dismissal procedure. Healing the process can only come from the Works Council itself, so that the employers make themselves more vulnerable if they are negligent during the information and consultation procedures. Nevertheless, the Court made clear that a failure during the procedure does not automatically lead to an unlawful dismissal.