Anti-Semitic activities and political propaganda in works councils

On 7 October 2023, the Palestinian terrorist organization Hamas slaughtered, raped and abducted Jewish men and women, children and babies in an act of unprecedented barbarism. And yet there are demonstrations not only in the Arab world, but also in German cities, at which terror is condoned, justified and explicitly welcomed. This is often accompanied by the ­desire of such actors to wipe the state of Israel off the map. Even companies are not immune to such actions by their employees. People of different origins and religions come together in the workplace. Tensions arise to which ­employers must react. Dealing with members of the works council in the event of political propaganda in companies is a particular challenge. This article provides an overview of the options for action, but also of the limits under Works Constitution Law.

General considerations

The right to freedom of expression also applies in the workplace. However, this right is not unlimited. For example, it may be possible to terminate the employment of an employee whose statements in the company exceed the limits of criminal liability. This may be the case – with ­regard to the topic dealt with here – in the event of inciting hatred (§ 130 German Criminal Code (StGB)) or insulting statements, for example. Anyone who, in a manner likely to disturb the public peace,

• incites hatred against a national, racial, religious or ethnic group, against parts of the population or against an individual because of his or her membership of the aforementioned group or part of the population, or incites violence or arbitrary measures, or
• attacks the human dignity of others by insulting, maliciously denigrating or slandering a designated group, part of the population or an individual because of their membership of a designated group or part of the ­population.

This also includes the dissemination of such writings or articles in social media or on the internet. A punishable approval of criminal acts is also considered (§ 140 StGB). This criminal offense can be committed, for example, by celebrating or justifying the atrocities committed by ­Hamas at gatherings or on social media. In contrast to ­incitement to hatred, offenses committed abroad are also covered. The statement: “Free Palestine, from the river to sea” is usually aimed at the eradication of the state of ­Israel and can therefore constitute an offense (according to ­Fischer in LTO of 16 October2023, see here). If an unlawful or even criminal statement is made in a private chat group, an employee can only invoke a legitimate expectation of confidentiality in exceptional cases (German ­Federal Labor Court (BAG), ruling of 24 August 2023 – 2 AZR 17/23). As a result, chat content can be used, and in particular, used to justify dismissal. The disturbance of industrial peace (below the threshold of criminal liability) can also justify dismissal in individual cases, usually after a prior warning.

Not only activities within the company, but also activities outside the company can be relevant to dismissal if they have an impact on employment. There may be serious doubts as to the employee’s reliability and/or suitability for the activity owed under their employment contract. ­Dismissal would be all the more justified if there is a ­connection to the job. Employees are also obliged to take into account the legitimate interests of their employer ­outside working hours. Unlawful conduct outside of work can ­result in an employee breaching their duty of consideration under § 241 (2) German Civil Code (BGB).

Political activities in the works council

Pursuant to § 74 (2) 2 (2) German Works Constitution Act (BetrVG), employers and works councils must refrain from activities that would impair the work process or the peace of the company. This prohibition applies not only to the works council as a body, but also to every member of the works council. Party political activities of the works council and its members are also prohibited, § 74 (2) 3 ­BetrVG. In contrast to the activities pursuant to § 74 (2) 2 BetrVG, it is not necessary for work processes or indus­trial peace to be impaired. The ban on party-political ­activity does not extend to statements of a general political nature without reference to a political party. Therefore, the works council would not violate the party-political ­neutrality requirement simply by making an appeal to the employees of the company to participate in an upcoming political election or to vote (BAG, ruling of 17 March 2010 – 7 ABR 95/08, NZA 2010, 1133). This means that general political statements are permissible, even if a distinction is difficult to make. Statements that are punishable by law or that disturb industrial peace are not permissible.

Injunctive relief of employers

In the opinion of the BAG, employers have no right to ­injunctive relief against works councils. Conversely, the court does grant works councils a general injunctive relief claim against employers if the relevant employer dis­regards the co-determination rights of the works council. However, it rejects a claim for injunctive relief on the part of employers – in a legally unconvincing manner – citing the lack of assets of works councils and the associated lack of enforceability of injunctions.

Dissolution of works councils

If a works council grossly violates its statutory duties, an employer can, among other things, have the works council dissolved by a labor court, § 23 (1) BetrVG. In practice, however, this option proves to be a blunt sword. A works council would only be dissolved when the decision ­becomes final. A works council can delay the entry of a ­ruling like this into legal force, for example, by means of an appeal, including an appeal against denial of leave to appeal, if the Regional Labor Court (LAG) did not allow an appeal to the BAG. On the other hand, a works council could avoid dissolution by resigning shortly before a ­legally binding ruling, appointing an election committee and holding new elections. It is not possible to dissolve a works council by means of a temporary injunction.

Exclusion from works councils

If it is not the works council itself but one of its members that acts in a manner that represents a gross breach of duty, the employer (but also the works council itself) may apply to a labor court to exclude this member in accor­dance with § 23 (1) BetrVG. Similarly to the case of an application to dissolve the works council, a works council member would only be excluded on the basis of a legally binding ruling. The works council member who had acted in breach of duty may stand for re-election at a new ­election. A temporary ban on holding office may be considered, at least according to the Hessian Higher Labor Court (ruling of 28 August 2023 – 16 TaBVGa 97/23). An employer would have to take this step but would not be able to issue a legally effective ban on a works council member.

Dismissal of a works council member

The employment contract of a member of a works council (or a youth and trainee representative body) can only be terminated without notice for good cause. This means it would have to be unreasonable for the employer to continue with this employment. In addition, § 103 BetrVG ­requires the prior consent of the works council to their dismissal. If this were refused, the employer would have to obtain a labor court ruling. The works council member concerned would not be entitled to vote. Such dismissal can only be pronounced after consent has been granted or replaced. There are no absolute grounds for dismissal. The individual case must always be considered. As a rule, a warning must be issued before notice of dismissal is given. If there is a strong suspicion of a serious breach of duty or a criminal offense, dismissal on suspicion may also be considered. The employer would have to give the relevant employee the opportunity to comment on the specific ­allegations before issuing a dismissal on suspicion. A transfer may also be considered as a milder measure. ­Pursuant to § 103 (3) 1 BetrVG, the consent of the works council to a transfer is only required if the transfer would lead to a loss of office or eligibility for election.

Dismissal request of the works council

In accordance with § 104 BetrVG, a works council can demand that an employer removes or transfers disruptive employees from the company if an employee has ­repeatedly seriously disturbed industrial peace through unlawful conduct or gross violation of the principles contained in § 75 (1) BetrVG. This also applies if the employee in question is a member of the works council. The Federal Constitutional Court (BVerfG) recently ruled that the extraordinary dismissal of a member of the works council was lawful due to racist comments made by an employee (ruling of 2 November 2020 – 1 BvR 2727/19, NZA 2020, 1704). A works council could also enforce the dismissal request in a labor court. If an employer acts contrary to a legally ­binding court ruling, the works council could apply for the imposition of a fine of €250 for each day of non-­compliance.

Conclusion

Employers cannot and must not tolerate political agitation that goes beyond the right to express an opinion. This also applies to members of the works council. While collective measures are often not very promising, (extraordinary) dismissals of works council members are also possible – with the consent of the works council. It is always important to consider the individual case.