No special protection against dismissal for candidates for the electoral committee

The Federal Labour Court (BAG) has decided that candidates for a position on the electoral committee do not enjoy special protection against dismissal until such time as they have been effectively and successfully elected, not however as unsuccessful candidates. The Second Senate of the BAG was called on to decide on the previously disputed question of whether employees who unsuccessfully stand as candidates for a position on the electoral committee within the context of Works Council elections, enjoy special protection against dismissal under Sections 15 Subsection 3 KSchG (Protection Against Dismissal Act) and Section 103 BetrVG (Works Council Constitution Act). Through its judgment, the BAG has agreed with the opinion represented by the LAG Baden-Württemberg. According to this, only employees who have been effectively elected or appointed as members of the electoral committee are entitled to the special protection against dismissal. By contrast, no special protection against dismissal is created in the event of ineffective or unsuccessful elections/ appointment procedures.

YouTube criticism admissible

The BAG was also required to decide whether critical comments by an employee in an Internet/YouTube video constitute an important cause within the meaning of Section 626 BGB. While the Labour Court Rheine and the LAG Hamm denied employees the right to make demonstrably untruthful factual claims via Internet video, the BAG assessed the matter differently. In the video, the employee had untruthfully claimed “that no expert personnel is available”. The BAG regarded this as an admissible explanation of why the employee considered it necessary to elect a Works Council for the first time. The BAG did not see any reason for dismissal in the fact that – following a failed Works Council election – the employee was stirring up hostile feelings via the Internet.

Summary

Participants in Works Council elections are not entitled to special protection against dismissal until such time as they have become effectively appointed or elected members of the electoral committee or candidates for membership of the Works Council. Unjustified criticism of the employer, including via the Internet, does not necessarily constitute grounds for dismissal.