Works council elections 2022: The election campaign has started

Five recommendations for how to act during the election campaign from an employer’s perspective

The 2022 works council elections are just around the corner. Between 1 March and 31 May 2022, employee representatives will once again be elected in German undertakings. Even though this means that there is still some time to go until the submission of the election proposals, the election campaign has already commenced in most businesses. Candidates are starting to campaign for themselves and employers should also use this phase.

1. Approaching candidates: also a tool for employers

The employers’ interest in works council elections is obvious: undertakings have an interest in working with the works council in a trusting and constructive manner. It can, therefore, make sense to specifically encourage people from among the workforce to become active on the works council, given that there are numerous matters requiring the works council’s approval, such as the introduction of technical devices (long-running issue: software/Sweet HR), where it certainly helps having employees with the necessary technical knowledge and interest on the works council. Consequently, approaching potential candidates could be a start.

Soliciting support for individual candidates is permissible, but should be kept within acceptable limits and should not take on the character of a separate election campaign (this means, for example, no use of company resources for a particular candidate).

2. Criticism is permitted

Employers are not obliged to remain neutral during the election campaign. In 2017, the German Federal Labour Court (Bundesarbeitsgericht – “BAG”, decision of 25 October 2017 – 7 ABR 10/16) clearly rejected such a neutrality requirement, which had previously been assumed to exist by some courts and in part of legal literature. Employers, too, can invoke the freedom to express their opinion under Article 5 (1) German Basic Law (Grundgesetz – “GG”) and take a stand in the election campaign. After all, employees can be expected to classify their employer’s statements and make their own, free election decisions. Like everywhere, objective and factually correct criticism is always appropriate. Employers are thus allowed to openly address problems encountered in their work with current bodies. This includes the right to publicly comment on individual candidates, also in a pointed manner, and even the right to make critical statements in relation to individual candidates.

3. Observing clear rules

The right to influence works council elections is not entirely unrestricted. The limits are clearly defined in Section 20 German Works Constitution Act (Betriebsverfassungsgesetz – “BetrVG”), according to which it is unlawful to promise or grant any advantages (Section 20 (2)), threaten with or cause any disadvantages (Section 20 (2)) or generally obstruct the election (Section 20 (1)). In this context, Section 20 (2) German Works Constitution Act protects above all the internal decision-making process of the employees entitled to vote whereas the prohibition against obstructions under Section 20 (1) German Works Constitution Act is to guarantee the external election process.

4. No preferential treatment

A prohibited preferential treatment of individual candidates does not only exist when these candidates are promised or granted salary increases, promotions or other direct benefits. Supporting an election campaign by providing funding or company infrastructure is also prohibited, unless such support is granted to all candidates in the same manner.

5. No unfavourable or discriminatory treatment

Conversely, an unfavourable or discriminatory treatment exists, in particular, if individual candidates or lists are not granted the same access to company funds as the remaining candidates. Threatening with or carrying out salary cuts, transfers or dismissals as a means of influencing the works council elections is, of course, also prohibited.

Conclusion: No false restraint – works council elections affect the entire undertaking

The election campaign for the 2022 works council elections has begun. As an employer, you should not hesitate to state your opinion. You should openly address current problems experienced in your work with employee representatives or individual works council members and encourage employees to become active on the works council and to stand for election. The limits of what constitutes undue influencing of the elections are clear and should not, therefore, prevent any undertaking from becoming actively involved in the election campaign.

Klaus Thönißen, LL.M. (San Francisco)

Klaus Thönißen, LL.M. (San Francisco)
+49 201 9220 24659