Strategies employers adopt in the run-up to works council elections: What's allowed and what's not?

This blog gives an overview of the ways in which employers can influence works council elections and what they need to bear in mind in the process.

In spring 2026, the next regular works council elections will be held in many companies in Germany (section 13 (1) German Works Constitution Act (BetrVG)). The outcome of these elections is of considerable importance not only to the workforce represented by the respective works council, but also to the employer. After all, a trusting and successful cooperation between the different parties within the company requires that the works council also consists of committed and competent employees who endeavour to work constructively with the employer for the benefit of the workforce and the company. The specific composition of a works council can therefore have a significant impact on cooperation between these parties. In light of this, employers often ask themselves whether and to what extent they can and are allowed to influence the works council election in the run-up to it and, in particular, during the election campaign.

Prohibition on obstructing or influencing works council elections

The options available to employers in the run-up to works council elections are largely determined by the election protection provisions under section 20 German Works Constitution Act (BetrVG). In accordance with these provisions, no one may obstruct the election of the works council (section 20 (1) sentence 1 German Works Constitution Act (BetrVG)) or influence the election of the works council by inflicting or threatening any unfavourable treatment or by granting or promising any advantage (section 20 (2) German Works Constitution Act (BetrVG)). Intentional violation of these provisions constitutes a criminal offence punishable by imprisonment of up to one year or a fine. However, prosecution will only be pursued at the request of the works council, the company works council, the group works council, the ship's committee, the fleet works council, the representative bodies of the employees referred to in section 3 (1), the electoral board, the employer or a trade union represented in the establishment (section 119 German Works Constitution Act (BetrVG)). In addition, obstructing or influencing the works council election may constitute grounds for contesting the election and, in particularly serious cases, may even lead to the election being declared null and void. Compliance with these requirements is therefore also of considerable relevance to employers in this context.

The works council election is deemed to have been obstructed if the initiation or execution of the election is made difficult or impossible as a result of unlawful conduct (German Federal Labour Court, decision of 25 October 2017 – 7 ABR 10/16). The main point here is that employees may not be unlawfully restricted in their right to vote or stand for election (section 20 (1) sentence 2 German Works Constitution Act (BetrVG)).

Employers are therefore prohibited from dismissing or transferring employees for the purpose of preventing them from participating in the works council election. However, dismissals or transfers that are not intended to obstruct elections are still possible. For example, dismissals or transfers for operational or conduct-related reasons are possible. This also applies if the dismissal or transfer results in the employee losing their right to vote or stand for election. However, the special protection against dismissal or transfer under sections 15 German Act against Unfair Dismissal (KSchG) and 103 German Works Constitution Act (BetrVG) must be observed if the employee affected by the measure belongs to one of the employee groups specified in those provisions (e.g. works council or electoral board members).

The prohibition on obstructing the election also protects employees and trade unions represented in the company from conducting election campaigns. The employer may therefore not generally prohibit any election campaigning in the establishment. Rather, they must tolerate permissible election campaigning. This may include distributing flyers during break times or putting up election posters in the establishment. However, employers are under no obligation to bear the costs of election campaigning.

The prohibition on obstructing the election does not mean that the employer must do everything in their power to ensure that employees actually participate in the works council election. The employer must only promote and take part in the works council election to the extent that the law imposes corresponding obligations on them, such as providing the electoral board with the information and documents it needs to be able to compile the voters' list (section 2 (2) German Election Regulations (WO)). Consequently, the employer is not required to grant paid leave to employees who wish to campaign for election (Düsseldorf Labour Court, judgment of 21 July 1981 – 1 Ca 2201/81).

No strict duty of neutrality for employers during election campaigns for works council elections

The prohibition on influencing elections pursuant to section 20 (2) German Works Constitution Act (BetrVG) is intended to protect the internal decision-making process of employees in order to ensure free choice. However, this does not prohibit every type of behaviour that could influence the works council election. Rather, a violation of the prohibition on influencing elections always requires that the specific influence be exerted by inflicting or threatening any unfavourable treatment or by granting or promising any advantage (German Federal Labour Court (BAG), decision of 23 October 2024 – 7 ABR 34/23; also German Federal Labour Court (BAG), decision of 25 October 2017 – 7 ABR 10/1).

It is therefore inadmissible for an employer to threaten an employee with dismissal, transfer or withdrawal of benefits if the employee does not vote in a certain way in line with the employer's wishes. Conversely, it is equally inadmissible to promise an employee favourable benefits (e.g. cash payments, additional days of leave or a promotion) in return for voting for a specific candidate or list. Employers are also not permitted to provide financial support to individual candidates or lists of candidates for works council elections (German Federal Court of Justice (BGH), decision of 13 September 2010 – 1 StR 220/09; also German Federal Labour Court (BAG), decision of 25 October 2017 – 7 ABR 10/1).

Despite such restrictions, employers are not under obligation to maintain strict neutrality (German Federal Labour Court (BAG), decision of 25 October 2017 – 7 ABR 10/1). In particular, they do not have to refrain from making any statements that could potentially influence the outcome of a works council election. Only when such statements are intended to manipulate the voters' freedom of choice by inflicting or threatening any unfavourable treatment or by granting or promising any advantage is the prohibition on influencing the election violated.

Therefore, employers and responsible managers also do not have to refrain from making any critical comments about the incumbent works council or its individual members. Not only are they allowed to express criticism, they may even encourage the workforce to draw up an alternative list of candidates. They may also encourage people to stand as candidates for such an alternative list. Furthermore, it does not constitute impermissible influence on the election if the employer merely expresses sympathy for certain lists or candidates.

Specific ways employers can take action during works council elections

Under the principles stated above, employers have the option of commenting on works council elections in the run-up to them.

Employers can, for example,

• encourage the workforce in general to take part in the works council election,
• express criticism of the existing works council or individual members of it,
• call on the workforce to put forward alternative candidates/lists of candidates and to stand as candidates for these, and
• specifically approach individual employees and encourage them to stand for election to the works council.

However, care must always be taken to ensure that no advantages are granted or promised to employees or individual lists, and that no unfavourable treatment is inflicted or threatened. 

In addition, it should always be considered whether and to what extent such statements are not only legally permissible, but also make tactical sense, as expressing sympathy for individual lists may, in some cases, mean that employees are even more inclined to refrain from voting for that list.