Works council – Know and use your rights as an employee
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What the works council can do for you and when a lawyer is also necessary
The works council is the legally enshrined representative body for employees within a company. It has clear rights of co-determination regarding dismissals, restructuring, and many other measures planned by the employer. Many employees are unaware of the specific rights the works council has – and what this means for their own situation. Rogert & Ulbrich represents employees in employment law and explains when the works council can help and when additional legal protection is advisable.
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3What is a works council?
Fundamentals and legal basis
The works council is a body of elected employee representatives, regulated by the Works Constitution Act (BetrVG). It is not a trade union and not an extension of the employer – but an independent institution that exclusively represents the interests of the workforce.
A works council can be elected in any establishment with at least five eligible employees, of whom at least three are eligible to be elected (§ 1 Works Constitution Act). The size of the works council depends on the size of the workforce: in establishments with 5 to 20 employees, it consists of one person; in larger establishments, it consists of several members.
Works council members are elected by secret ballot by all eligible employees. Their term of office is four years. Members enjoy special protection against dismissal during their term and beyond – we will return to this point later.
It's important to know that a works council doesn't exist automatically. It must be elected by the workforce. Many smaller companies don't have a works council – either because the workforce is too small or because no initiative has yet been taken to establish one. If you're wondering whether a works council can be established in your company, you should seek legal advice before taking any action.
Rogert & Ulbrich will examine whether your company has a works council and what specific rights it can use in your situation as part of an initial assessment of your case.
We will take care of your case – quickly & with commitment.
Works council consultation in case of dismissal
an underestimated intellectual property right
The most important right of the works council in cases of dismissal is the obligation to consult the works council, as stipulated in Section 102 of the Works Constitution Act (BetrVG). Before an employer dismisses an employee, they must consult the works council. Without this consultation, the dismissal is invalid – regardless of whether the reason for dismissal itself would be legally valid.
The employer must provide the works council with all essential information: the person to be dismissed, the type of dismissal, the termination date, and the reasons for dismissal. A general or incomplete notification is insufficient. The works council then has one week to comment – only three days in the case of extraordinary dismissals.
The works council can object to the dismissal. An objection has several consequences: First, the employer must provide the employee with the objection along with the dismissal notice. Second, if the employee files a claim for protection against dismissal, they have a right to continued employment until a legally binding court decision is reached, under certain conditions (Section 102, Paragraph 5 of the Works Constitution Act).
In practice, this means that if your employer did not consult the works council before your dismissal, or did not do so properly, the dismissal is contestable – even if the reason for dismissal itself would be formally justified. This is one of the most common procedural errors in dismissals.
Have you been given notice of termination and are unsure whether the works council was properly involved? Act quickly: The deadline for filing a claim for unfair dismissal is only three weeks from the date you receive your notice of termination. Contact Rogert & Ulbrich and have your case reviewed.
Co-determination rights of the works council
when he needs to be more than just informed
The rights of the works council extend far beyond being consulted on dismissals. The Works Constitution Act (BetrVG) distinguishes between rights to information, rights to consultation, and genuine co-determination rights – depending on the subject matter, the works council has varying degrees of influence.
- Enforceable co-determination (§§ 87 ff. Works Constitution Act): In certain social matters, the works council can enforce regulations. These include working hours, break regulations, vacation policies, workplace monitoring measures, company wage structures, and rules of conduct. If the employer acts without the works council's consent, the corresponding measures are invalid.
- Consent for appointments and transfers (§ 99 Works Constitution Act): In companies with more than 20 employees, the works council must approve hiring, transfers, reclassifications, and job classifications. If the works council refuses its approval for one of the legally recognized reasons, the employer cannot act unilaterally.
- Reconciliation of interests and social plan in the event of operational changes (§§ 111 ff. Works Constitution Act): If the employer plans significant changes to the company – such as mass redundancies, relocations or closures – he must negotiate a reconciliation of interests with the works council and usually draw up a social plan that regulates financial compensation for affected employees.
- Information and consultation (§ 90, § 92 Works Constitution Act): When planning workplaces, work processes, and work environments, the works council has a right to early information and consultation. The employer must actively fulfill these rights – the works council does not have to demand them.
If you believe your employer is circumventing or ignoring works council rights, you as an employee have options to take action. Rogert & Ulbrich can advise you on the most appropriate steps in your specific situation.
Special protection against dismissal for works council members
Those who take on a works council mandate enjoy special protection against dismissal – and for good reason: Without this protection, employers could simply dismiss dissident works council members in order to weaken the body.
According to Section 15 of the German Protection Against Unfair Dismissal Act (KSchG), ordinary dismissal of a works council member during their term of office is generally prohibited. An employer can only dismiss a works council member for extraordinary reasons – i.e., without notice – and even then only with the consent of the works council. If the works council refuses its consent, the employer must involve the labor court.
The protection does not end with the mandate: According to Section 15 Paragraph 1 Sentence 2 of the German Protection Against Unfair Dismissal Act (KSchG), extended protection against dismissal applies for one year after the end of the term of office. Candidates nominated for works council elections are protected from the moment their nomination is submitted – even if they are ultimately not elected.
This protection also applies accordingly to members of other bodies such as the youth and trainee representation, the election committee and the economic committee.
If you are a works council member or election candidate facing or have already received notice of dismissal, swift action is crucial. Your legal position is strong – but it must be actively asserted. Contact Rogert & Ulbrich.
No works council in the company
what employees can then do
Many employees work in companies without a works council. This means that all the protective rights that the Works Constitution Act (BetrVG) attaches to the existence of a works council do not apply. The employer is not obligated to consult with the employee before dismissals, there is no right to object, and no reconciliation of interests can take place.
This significantly restricts employee protection – but does not render it worthless. The German Protection Against Unfair Dismissal Act (KSchG) applies regardless of the existence of a works council. Employees who have been employed in a company for more than six months and work in a company with more than ten employees are protected against unfair dismissal under Section 1 of the KSchG. The employer must justify the dismissal on social grounds – through operational, conduct-related, or personal reasons.
Furthermore, there is special protection against dismissal that applies independently of the works council: for severely disabled persons (§ 168 SGB IX), pregnant women and mothers (§ 17 MuSchG) and employees on parental leave (§ 18 BEEG). These protective rights exist without any involvement of the works council.
Those who work in a company without a works council and have problems with their employer are not without protection – but usually need closer legal support, as there is no internal corrective mechanism.
Are you working without a works council and have you been dismissed or are you experiencing conflicts at work? Rogert & Ulbrich will review your rights and show you what steps you can take.
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Rogert & Ulbrich – Your lawyers in employment law
Rogert & Ulbrich is a Düsseldorf-based law firm specializing in employment law. Dr. Marco Rogert and Tobias Ulbrich represent employees in unfair dismissal claims, severance negotiations, and all types of employment law disputes – including those in companies without a works council and in cases of mass redundancies. With over 40,000 cases handled and more than 25,000 lawsuits filed, the firm is among the most experienced representatives in employment law.
Rogert & Ulbrich supports employees from the initial consultation to the conclusion of the proceedings – both out of court and before the labor court. The firm examines dismissals for all legal weaknesses, including the works council consultation pursuant to Section 102 of the Works Constitution Act (BetrVG), the social selection process pursuant to Section 1 Paragraph 3 of the Protection Against Unfair Dismissal Act (KSchG), and any applicable special protection against dismissal. Many clients have legal expenses insurance that covers attorney and court fees.
The three-week deadline for filing a claim against unfair dismissal begins on the day the notice is served. Don't wait. Get in touch and secure your rights.
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