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Germany: Recent Works Council Rulings

By - - Employment Law

Two recent court decisions relate the operation of works councils.

Postal Voting for Works Council Elections  

Postal voting for works councils is only allowed in exceptional circumstances and under strict conditions.

The regulations permit postal voting only for those parts of companies that are geographically distant from the main establishment, to make it easier for employees to vote where the journey to the polling station would be very difficult. 

A recent court decision has made clear the following points regarding the holding of postal voting:

  • A general organisation wide order for postal voting is not allowed.
  • A postal vote should only apply to those employees working in remote locations and for whom travel to the main establishment imposes an unreasonable burden.
  • A postal vote generally cannot be held without there being a main establishment.
  • There is a high compliance requirement to conduct postal voting, that may override any specific practical considerations.

Employers should ensure that the election committees of works councils are fully aware of all election rules. Where there is any uncertainty, taking legal advice in good time will reduce the risk of costly errors.       

Works Council Members Obligation to Comply with Data Protection Rules

A works council chairperson had forwarded work related emails and an Excel spreadsheet containing personal data (names and remuneration details) to a private email address. It was explained that this was for practical reasons only and all data had been returned.

However, the employer regarded this as a gross breach of duty and removed the chairperson from the works council. The chairperson brought a claim.

The court held in favour of the employer. The chairperson had processed data as defined by the GDPR on a private computer. Doing so involved significant risk to that data and amounted to a gross breach of duty under GDPR. The employer was justified in the chairperson’s removal from the works council.       

Compliance with GDPR rules applies to members of works councils as it does to all employers. Employers are advised to ensure that works council member are aware of their obligations under GDPR and that exclusion proceedings may follow a breach of those rules.

This is a high-level general update only. Legal advice should be obtained on specific circumstances.
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