No entitlement of the Works Council to submission of all final written warnings

The Works Council cannot make a blanket demand for the employer to submit all final written warnings, issued as from a certain date, in anonymized form, with the exception of executive managers and the directors.

In the decision, the Works Council demanded that the employer submit all final written warnings issued during a specific period. The Works Council justified its application by referring to the fact that it could intervene in a regulating and job-retaining manner and influence the employer before he would give notice of termination, if it had knowledge of existing problems – as set out in final written warnings. Additionally, the study of individual final written warnings had shown that the employer had in part reprimanded violations of instructions that had been issued without the involvement of the Works Council.

Following upholding of the Works Council’s claim by the two previous instances, the Federal Labour Court dismissed the corresponding application.

No entitlement on the basis of Section 80 Subsection 2 BetrVG

The claim of the Works Council does not result from Section 80 Subsection 2 BetrVG (Works Council Constitution Act). According to this standard, the Works Council must be informed by the employer in good time and extensively for the purpose of performing its duties. Under Section 80 Subsection 2 Sentence 2 Half Sentence 1 BetrVG, the employer is obliged in particular to provide the documents, necessary for performance of the tasks, if requested to do so. According to the decision of the BAG (Federal Labour Court), a precondition for the entitlement is that the Works Council has a task at all, and that the documents requested are also necessary for performance of this task.

It is precisely these prerequisites that the Works Council – contrary to its corresponding obligation – failed to set out to a sufficient extent. There is no task for the Works Council for which the handing over of all final written warnings could be necessary.

There is no duty of the Works Council to influence the employer such that no employment contracts are terminated. Outside the formal hearing procedure as per Section 102 BetrVG, the Works Council must not be involved in the issuing of final written warnings. Rather, the right of co-determination is not created until initiation of the information procedure as per Section 102 BetrVG.

Section 87 BetrVG likewise does not result in any duty of the Works Council that generally necessitates the Works Council being able to see all final written warnings. Final written warnings can concern complex facts that are not related to the codetermination rights of the Works Council. Here, the BAG quotes assault as an example of a reason for a final written warning. The Works Council had not set out in sufficient detail why, in the specific case, its co-determination rights under Section 87 BetrVG should require the submission of all final written warnings issued.

Through this decision, the BAG overruled the opinion of the previous instances that even a “certain probability of the existence of Works Council duties” is sufficient to create an entitlement to information on the part of the Works Council.

Conclusion

The decision shows that the Works Council’s rights and duties are a matter of the specific facts. Employers are not required to comply with all requests by the Works Council to hand over documents without further legal checking. Rather, it is the Works Council’s duty to demonstrate in detail why which documents are necessary for the fulfilment of its statutory tasks. Blanket requests and blanket references to Section 87 BetrVG do not satisfy this obligation.