Manpower Planning
Which provision regulates manpower planning?
§ 92 BetrVG.
What is a transfer within the meaning of § 95(3) BetrVG?
Assignment to another work area expected to last more than one month or involving a substantial change in working conditions.
Which four individual personnel measures are covered by § 99 BetrVG?
Hiring, grading, regrading and transfer.
Must the Works Council be heard before every dismissal?
Yes. A dismissal issued without proper hearing is invalid.
Which provisions give Works Council members special protection against dismissal?
§ 15 KSchG, supplemented by the consent requirement in § 103 BetrVG for extraordinary dismissal.
What information must the employer provide under § 92 BetrVG?
It must inform the Works Council fully and in good time about manpower planning and provide the planning documents it uses.
When does grading occur?
When the employer determines the wage or salary group applicable to an employee in connection with hiring.
From what establishment size does § 99(1) BetrVG generally apply?
In establishments that normally employ more than 20 employees entitled to vote.
How long does the Works Council have to respond to an ordinary dismissal consultation?
One week. For an extraordinary dismissal, it has three days.
How long does the special protection for a Works Council member generally continue after leaving office?
One year.
The employer has no formal manpower plan and refuses to create one. Can the Works Council compel the employer to begin manpower planning under § 92 BetrVG?
No. Section 92 BetrVG provides information and consultation rights regarding manpower planning actually undertaken by the employer. It does not generally create an enforceable right to initiate manpower planning.
An employee is assigned for six weeks to another work area, with the same job title and pay but new colleagues, supervisors and operational processes. Is this potentially a transfer under § 95(3) BetrVG?
Yes. A transfer can exist where the new assignment is expected to exceed one month and changes the employee’s work area through altered operational circumstances.
A fixed-term employment contract is extended for a further year. Is this a hiring within the meaning of § 99 BetrVG?
Yes. The extension of a fixed-term contract is treated as a hiring and requires participation under § 99 BetrVG where the statutory threshold is met.
May the employer rely in dismissal litigation on facts that were known before the dismissal but were not communicated to the Works Council during the consultation?
No. The employer must communicate all material facts and subjective considerations that motivated the dismissal; undisclosed grounds may not subsequently be relied upon beyond merely explaining the communicated facts.
An employee announces in a meeting that they may run for the Works Council, but no valid nomination list has been submitted. Does special protection for election candidates already apply?
No. Candidate protection requires at least a nomination proposal meeting the statutory requirements; an informal announcement alone is insufficient.
The employer closes a department and transfers its employees. The Works Council refuses consent under § 99(2) no. 4 BetrVG because it considers the closure commercially unwise. Is that a valid ground for refusal?
No. The Works Council cannot use § 99 to review the commercial expediency of an entrepreneurial decision. It may assess disadvantages caused by the individual measure, but not compel reversal of the underlying business decision.
The employer implements a transfer without consent under § 99 BetrVG. Can the Works Council obtain a general injunction through interim relief, ordering the employer never again to make such transfers without consent?
No. For personnel measures covered by § 99 BetrVG, § 101 BetrVG provides the specific remedy to seek removal of the unlawfully implemented measure, displacing a general injunctive claim.
The employer provides incomplete information on an intended hiring. May the Works Council refuse consent solely because the information is incomplete?
No. Incomplete information is not itself a ground for refusal under § 99(2) BetrVG. However, the one-week response period does not begin until proper information is provided, and the Works Council must identify the deficiencies known to it.
The employer has concluded an Interessenausgleich with a Namensliste for a restructuring. Does this replace the Works Council consultation required by § 102 BetrVG before each dismissal?
No. A proper § 102 BetrVG consultation remains necessary.
A Works Council member’s entire establishment is closed. Does the employer always require prior consent under § 103 BetrVG to give an ordinary dismissal?
No. Where the facts fall within the closure exceptions of § 15(4) or (5) KSchG, prior consent under § 103(1) BetrVG is not required. The employer must nevertheless comply with the strict requirements of the special protection provisions and with § 102 BetrVG.
The employer is planning an operational restructuring and gives the Works Council detailed headcount information. The Works Council demands all historic remuneration data for every employee, asserting that this might reveal possible individual payment claims. Is that covered by its information rights?
No. Information must be necessary for a statutory task. A request aimed merely at finding potential individual claims “in the dark” is not covered by the Works Council’s monitoring function.
The employer unlawfully transfers an employee without consent. The employee wishes to refuse work at the new location. What impact does the employer’s breach of § 99 BetrVG have on the employee's rights?
The Works Council’s primary statutory remedy is the removal procedure under § 101 BetrVG. The individual contractual consequences depend separately on the employee’s contractual duty and the validity of the employer’s direction; the co-determination breach alone does not answer every individual-law question
The employer urgently hires a replacement without first obtaining consent and invokes § 100 BetrVG. The Works Council disputes urgency. What must the employer do to maintain the measure?
The employer must immediately inform the Works Council of the provisional measure and the asserted urgency. If the Works Council disputes urgency or refuses consent, the employer must promptly seek a labour-court determination; otherwise the measure cannot simply continue.
The employer first consults the Works Council about an extraordinary dismissal. After the Works Council objects, the employer issues an ordinary dismissal “in the alternative” based on the same facts. Is a separate consultation normally necessary?
Yes. Ordinary and extraordinary dismissals are distinct measures with different legal assessments and response periods. The Works Council must be given a proper opportunity to comment on the specific dismissal intended.
The Labour Court finally substitutes the Works Council’s consent under § 103(2) BetrVG for an extraordinary dismissal of a Works Council member. Can the employee still bring a dismissal protection claim?
Yes. The employee may still challenge the dismissal. However, the final substitution decision generally binds the dismissal proceedings regarding the justification of the extraordinary dismissal, subject to genuinely new facts that could not have been considered earlier.