The role of the employer in works council elections

Between support and neutrality: The role of the employer in works council elections

With works council elections coming up in 2026, we take a look at the role of the employer in works council elections. This role is characterised by a delicate balance: on the one hand, the employer is obliged to support the election process, but on the other hand, they must strictly observe the neutrality required by law. In particular, the distinction between permissible participation in elections and impermissible influence on elections is often difficult to draw in practice and entails legal risks. The highest court ruling of the Federal Labour Court (BAG) provides a benchmark that can help to classify lawful influence.

1. The election procedure and the role of the employer

The central body of the election is the election committee, which organises, supervises and ensures the election. If the conditions for a works council election are met in the company, the election committee is elected by the existing works council. The election committee initiates the election, draws up the list of voters and announces the election. Once the deadline for submitting nominations has passed, the actual election takes place, either by secret ballot or, in individual cases, by postal vote. After the votes have been counted, the election committee determines the election results and announces them. Finally, the newly elected works council is convened for its constituent meeting.

The employer remains largely uninvolved in the process, but must support the election. To enable the election to be conducted properly, for example, rooms and materials must be provided, election committee members must be granted time off work to perform their duties, and information must be made available for the compilation of the list of voters. According to Section 20 (3) sentence 1 Works Constitution Act (BetrVG), the employer must bear the entire costs of the election and, according to Section 20 (3) sentence 2 BetrVG, is not entitled to reduce wages for lost working time in connection with the election. In accordance with the principle of trust pursuant to Section 2 (1) BetrVG, the employer may request information on organisational steps relating to the election, but may also prevent the election from disrupting business operations in accordance with the principle of consideration.

2. No influence on the election through observance of the duty of neutrality

During the election process, the employer has a duty to remain neutral. Pursuant to Section 20 (1), (2) BetrVG, the employer may neither obstruct nor influence the election. In particular, unlawful influence on the election is significant in practice, as it is more subtle and occurs more frequently. Employers occasionally attempt to influence the composition of the works council in their favour by spreading opinions or supporting certain candidates without directly preventing the election. Undue influence on the election can lead to the works council elections being declared null and void.

The threat to neutrality and thus the invalidity of the election was also discussed in a decision of the BAG in 2017 (BAG decision of 25 October 2017, 7 ABR 10/16). In the proceedings, a works council election was contested on the grounds of impermissible influence on the election due to statements made by the head of human resources. In order to prevent the re-election of the then incumbent works council chairwoman, the head of human resources told several employees that the works council chairwoman was hindering the work of the company and that anyone who voted for her was committing treason. The BAG did not consider this to be unlawful influence on the election and declared the elections valid. In its reasoning, it stated that the employer does not have to remain strictly neutral in connection with works council elections. Sympathies for certain lists and candidates may be expressed. Influence is exerted by inflicting or threatening disadvantages or by granting or promising advantages, such as buying votes from employees or providing financial support to individual candidates. Describing the election of a candidate as "treason" does not constitute a threat of disadvantage. There are no specific sanctions for individual voters.

The decisive factor for unlawful influence on the part of the employer is the impact on the formation of will and decision-making. The inner freedom of the electoral decision is guaranteed in principle by the secrecy of the ballot; mere participation in the election campaign by expressing opinions and campaigning does not in itself jeopardise this freedom.

3. Conclusion

In principle, the employer remains in the background and provides organisational and financial support for the election process. It is essential that the employer remains neutral in order to ensure the legitimacy of the election and to avoid legal consequences such as the election being contested or declared null and void. Employers should therefore be aware of their responsibilities and carefully observe the legal requirements to ensure that the election runs fairly and smoothly. However, they are not prohibited from participating in the election by presenting arguments and expressing their opinions.