Duty of neutrality vs permissible influence in works council elections

The employer's duty of neutrality is not "absolute." The Federal Labor Court (7 ABR 10/16) has clarified that Section 20 (2) of the Works Constitution Act (BetrVG) prohibits influencing by inflicting/threatening disadvantages or granting/promising advantages; However, this does not result in a general obligation to remain silent regarding the election or individual candidates. Objective, critical comments are permissible as long as they are made without pressure, threats, or advantages.

Practical classification from consulting practice: Employers are often allowed to express themselves more freely than they realise. The election protection provided by Section 20 (2) BetrVG in conjunction with the criminal liability for influencing elections under Section 119 (1) No. 1 BetrVG often causes employers who do not want to provide any grounds for criticism to exercise enormous restraint. However, there is no strict requirement for neutrality, and expressions of sympathy are certainly possible as long as they are not linked to advantages or disadvantages.

Permissible influence: What employers are allowed to say and do

The following is permissible, for example:

• Objective information about the process (location, time, organisational details) and the importance of constructive cooperation;

• expressing criticism of the current works council (or individual members);

• objectively justified positioning on competencies that are important to the company from a corporate perspective (e.g., experience in transformation projects), without favouring candidates by linking advantages/disadvantages;

• calls and targeted appeals to stand as a candidate or to form an alternative list of proposals, provided this is done without pressure and without favouritism;

• participation in company/information events relating to the election, without campaigning via official channels.

According to the Federal Labour Court, the limit of permissible influence is where influence is exerted through advantages and disadvantages.

Unacceptable influence: What to avoid

The following, for example, is not permitted:

• Promising advantages (e.g., promotions, bonuses, better work schedules) in exchange for votes or support for a list/candidacy;

• threatening disadvantages (e.g., withdrawal of projects, poor performance reviews) for "wrong" voting decisions or (non-)candidacy;

• election campaigning via official channels (intranet, company newsletters, mandatory meetings) in favour of individual candidates/lists; social media campaigns using official accounts carry increased risks;

• unequal treatment of candidates (time off work, resources, rooms) with a de facto effect as an advantage/disadvantage.

Legal consequences:

Serious violations can lead to legal challenges (Section 19 BetrVG) and be prosecuted as criminal offenses (Section 119 BetrVG). Damage to reputation can also be considerable.

Conclusion

The line of case law is clear: no linking to advantages/disadvantages - then an objective statement is permitted.

Internally, it is up to each employer to weigh up the extent to which a statement and positioning is promising and sensible. Experience has shown that any influence in the context of a works council election should be carefully considered. The works council is a legally established employee committee whose task is to represent the interests of the workforce. For this reason, workforces are at least partially sensitive to perceived influence, which can lead to mistrust and tension. Constructive cooperation between the employer and the works council is crucial in the long term for a stable and legally secure company organisation.

This article supplements our overview article "The role of the employer in works council elections" and provides a more in-depth look at how employers are permitted to communicate during the election campaign. For a comprehensive understanding, we recommend reading both articles together.