The works council election is the responsibility of the workforce and not of the employer: this principle is not only a general rule but also a legal requirement under works constitution law. Unlawful interference by the employer can have far-reaching consequences, which is why employers would be well-advised to comply with certain rules of conduct.
The employees are responsible for organising and holding works council elections. The German Works Constitution Act (Betriebsverfassungsgesetz – “BetrVG”) and the Election Rules (Wahlordnung – “WO”) contain very few provisions regarding the employer’s involvement in works council elections. Pursuant to Section 2 (2) Election Rules, for example, the employer is obliged to provide certain information to the electoral board for the creation of the electoral roll, and Section 20 (3) sentence 1 German Works Constitution Act requires the employer to bear the costs. In short, the employer is only involved where its cooperation is indispensable.
However, the German Works Constitution Act contains various obligations and prohibitions addressed to the employer. For example, it prohibits obstructing the election of the works council (Section 20 (1) German Works Constitution Act); in particular, no employee may be restricted in exercising his or her right to vote or to stand for election. This prohibition protects the external acts involved in the election process, i.e. the act of standing for election, the preparation of election proposals, the collection of support signatures, the canvassing and the casting of votes. In addition to this, it prohibits influencing the election of the works council (Section 20 (2) German Works Constitution Act). This means that the works council election must not be influenced by manipulating the voter’s decision-making process which precedes the external acts involved in the election process.
Even though both provisions are worded in such a way as to address any person or body whatsoever – superiors, election candidates, trade union representatives – the prohibitions actually concern above all the employer’s conduct and communication.
In addition to these express prohibitions, it is assumed both in case law and in legal literature that the employer has a general duty of neutrality, regardless of the basis of such duty. This duty of neutrality is intended to ensure equal opportunities for all candidates participating in the election. However, the employer is not subject to a strict neutrality requirement in connection with the works council elections. Not every act or statement that might be susceptible of influencing the election is prohibited: the influence must be exerted by causing or threatening with disadvantages, or by granting or promising advantages (German Federal Labour Court (Bundesarbeitsgericht – “BAG”), decision of 25 October 2017 – 7 ABR 10/16, NZA 2018, pp. 458 et seq.). The employer acts as a kind of “referee” during the works council election: it must supervise the election and is prohibited from granting a certain group of candidates advantages, or denying another group of candidates the same advantages, and must also refrain from any other discrimination. The duty of neutrality serves electoral integrity and is intended to prevent the employer from influencing the election of the very bodies that are (later) supposed to monitor the employer.
The duty of neutrality is not an absolute duty, however, as the basic right to freely express one’s opinion also applies, of course, to employers. The limits of how far the employer may go are fluid. It is clear that statements which contain (implied) threats of concrete disadvantages or promises of concrete advantages are unlawful. Acts that are generally punishable, such as insults or similar offences, are, of course, also prohibited. According to the rulings of the German Federal Constitutional Court (Bundesverfassungsgericht), the freedom to express one’s opinion does not cover deliberate untrue factual claims or abusive criticism, so employers should refrain from expressing such claims or criticism, just like anyone else.
The duty of neutrality does not only mean that certain acts are prohibited: it can also be breached by the employer failing to act. This distinction is especially important for potential sanctions or legal consequences. The reason for this is that while violations of Section 20 (1) and (2) German Works Constitution Act are criminally sanctioned under Section 119 (1) no. 1 German Works Constitution Act, a breach of the duty of neutrality will, at the most, result in the works council election being contestable, provided that the breach falls within the scope of Section 20 German Works Constitution Act or of any other essential electoral rules within the meaning of Section 19 (1) German Works Constitution Act.
The election is considered to be unlawfully obstructed if initiating or holding the election is made more difficult or even impossible. The election does not have to be prevented; it is sufficient that the election is significantly interfered with or made significantly more difficult. The employer is considered to behave unlawfully, for example, if it instructs any of its employees not to vote or not to stand for election, if it takes down election posters or if it issues cautions because of an election advertisement. Further examples of unlawful behaviour would be the employer’s refusal to provide the documents needed to create the electoral roll, its refusal to release members of the electoral board from their obligation to work or the deliberate assignment of tasks to employees with a view to preventing them from voting.
By contrast, if the employer refuses to release an election candidate from his or her obligation to work so he or she can collect signatures for his or her election proposal, or if the employer reminds an executive employee of his or her status as an executive employee without expecting a particular behaviour, this does not constitute an obstruction of the election.
If the employer offers a group of candidates its PR department’s assistance to create an election magazine or if, by order of the employer, an executive employee collects support signatures for a candidate in the business, this constitutes unlawful interference, according to case law. The employer is further considered to interferering with the works council election if it promises a promotion, or threatens to deny a promotion, in the event of a particular behaviour regarding the election, if it announces the cancellation of voluntary benefits or if the employer threatens to assign the employee a less favourable job, for example. Pointing out the importance of the election, on the other hand, is permitted, as this only constitutes an invitation by the employer to participate in the election and not support for a candidate.
Other unlawful acts include threatening an employee with individual disadvantages in the event that he or she stands for election, as well as announcing disadvantages of a general nature, for example, that dismissals or the closure of the business can be expected if a certain list wins. The threat must be more than just a warning, however; this means that it must concern something bad in the future which the employer can actually (or allegedly) make happen.
Employers are strongly advised to be particularly careful when granting special benefits. Furthermore, they should make sure that all obligations under the Election Rules are comprehensively fulfilled in due time. The managing directors and executive employees should completely refrain from commenting on any candidate or performance and/or examine very carefully whether the relevant comment is a lawful expression of their opinion.