On June 18, 2025, the Federal Labour Court (BAG) ruled on the appeal of a works council member (case reference: 7 AZR 50/24). The plaintiff was employed based on a fixed-term employment contract. This contract was concluded at the beginning of 2021 and later extended by one year. The contract was due to expire on February 14, 2023—the plaintiff was elected to the works council in the summer of 2022.
After the fixed-term contract expired, the employer did not offer the works council member a permanent contract. The plaintiff challenged this before the labour court. The plaintiff was of the opinion that the fixed-term contract was invalid due to the works council activity. In any case, the employer had to offer a permanent employment contract. The plaintiff based this on the fact that 16 of a total of 19 employees whose fixed-term contracts ended on February 14, 2023 had been offered a permanent employment contract. In addition, the employer had previously complained about issues with the coordination between works council activities and work activities. In the plaintiff's opinion, this should speak in favor of discrimination due to the mandate activity.
The BAG dismissed the claim and thus confirmed the decisions of the lower courts (Hanover Labour Court - case reference: 11 Ca 69/23; Lower Saxony Labour Court - case reference: 11 Sa 476/23). The BAG also confirmed its own case law from 2012 (case reference: 7 AZR 698/11) and 2014 (case reference: 7 AZR 847/12). An employment relationship of a works council member with an unfounded fixed term ends at the end of the agreed fixed term, just like those of other employees. Section 15 German Act Against Dismissal protects works council members from dismissal. However, the end of fixed-term employment contracts is not covered by this.
According to Section 78 sentence 2 German Works Constitution Act (BetrVG), the employer may not discriminate against works council members because of their mandate. In principle, such discrimination could result if an employee does not receive a permanent employment contract precisely because of their work on the works council. However, the BAG has confirmed that the works council member bears the burden of presentation and proof for this. The works council member must therefore argue in court that it was precisely the works council activity that led to the employer not offering a permanent contract.
However, this burden of presentation and proof is graduated. This is because the works council member usually cannot know the reasons for the employer's refusal to offer continued employment. It is therefore sufficient for the works council member to present evidence of discrimination. However, the plaintiff in the case decided by the BAG failed in doing so. This is because the defendant employer did offer other works council members a permanent contract.
Furthermore, the Lower Saxony Labour Court has taken the fact into account that the works council had been elected for the first time in the company when considering the disagreements between the employer and the works council. Accordingly, both sides would first have had to learn how to deal with the exemption from work activities for works council purposes. The employer also argued that it was not satisfied with the performance and behavior of the representative and therefore did not want to enter a permanent employment relationship.
Employers should exercise caution when works council members are employed on the basis of a fixed-term employment contract. If the employer wishes to extend the contract or offer a permanent employment contract, it should document the reasons for doing so. In the case decided by the BAG, there was indeed a disadvantage; conversely, however, it would also be conceivable for a works council member to be favored in accordance with Section 78 sentence 2 BetrVG if they were given a permanent employment contract solely because of their mandate. However, if the employer—as in the case decided by the BAG—does not wish to offer a permanent employment contract, it should also document the relevant reasons for this in a legally secure manner.
______________