Mistakes In Works Council Consultation Prior To Termination: Serious Consequences, But Avoidable

A termination may be thoroughly prepared from an employment-law perspective. However, if the works council has not been properly consulted, the termination is invalid for that reason alone. To avoid this far-reaching legal consequence, employers should approach works council consultations with particular care and avoid common pitfalls.

Starting Point: The Works Council Must Be Consulted Before Any Termination

If a works council exists in the establishment, the employer must consult it before issuing any notice of termination (Section 102(1) of the Works Constitution Act ("Betriebsverfassungsgesetz (BetrVG)")). This applies regardless of whether the employer intends to issue an ordinary termination, an extraordinary termination, or a dismissal with the option of altered terms, whether the Protection Against Dismissal Act ("Kündigungsschutzgesetz (KSchG)") applies, or whether the employee is still within the statutory waiting period.