Works council elections 2026: The ten most common mistakes to avoid

The next regular works council elections are scheduled for 2026. What are the most common mistakes made by election committees when preparing and conducting works council elections?

The next regular works council elections are scheduled for 2026. The elections will be prepared and conducted by the election committee. The election process is highly formalized and prone to mistakes – even minor mistakes can render the entire election contestable. In practice, election committees often fall into the same pitfalls. We have compiled the ten most common mistakes that employers should be aware of to ensure a legally compliant works council election.

Mistake 1: Misunderstanding of the term ‘establishment’

The starting point for the council's elections is the ‘establishment’. A works council is elected for each establishment. In practice, however, the election committee and the employer often have different views on what constitutes an establishment.

If, for example, an employer has two separate establishments which the election committee considers to be a single establishment, the election committee would incorrectly extend the election of a works council to both establishments. As a result, the wrong employees would be considered eligible to vote and stand for election, and more works council members would be elected than provided for in Section 9 of the Works Constitution Act (Betriebsverfassungsgesetz - BetrVG).

Mistake 2: Incorrect determination of the number of employees

Disagreements between the election committee and the employer often arise regarding the question of how many employees eligible to vote are normally employed in the establishment. This number is decisive for the size of the future works council.

Errors arise when people who are not eligible to vote are included in the count, such as managing directors, senior executives, freelancers or employees in the release phase of partial retirement. The number of employees eligible to vote who are normally employed in the establishment, i.e. the number of staff generally characteristic of the establishment, is decisive for determining the size of the works council within the meaning of Section 9 of the Works Constitution Act (BetrVG); random or only temporary fluctuations are not taken into account.

Mistake 3: Incorrect assessment of active and passive voting rights

When compiling the electoral roll, the election committee must carefully assess who is eligible to vote and who is eligible to be elected. According to Section 7 (1) of the Works Constitution Act (BetrVG), all employees of the establishment who have reached the age of 16 are eligible to vote. According to Section 8 (1) sentence 1 of the Works Constitution Act (BetrVG), all persons who are eligible to vote and have reached the age of 18 and have been with the establishment for six months are eligible to be elected. In practice, the same questions arise regularly – here are the most common ones and the correct answers:

Can a dismissed employee participate in the works council election? Yes, if notice of termination has been given but the notice period has not yet expired.

Can temporary workers participate in works council elections at the hiring establishment? Yes, if they have been working there for more than three months. The decisive factor is a forecast decision, which is usually based on the contract between the temporary employment agency and the hiring employer.

Can an employee participate in works council elections during the release phase of partial retirement? No, they are not eligible to vote because they are no longer integrated into the establishment.

In May 2025, the Federal Labor Court ruled that managers in matrix structures may also vote in the establishment where they manage employees. They can therefore be eligible to vote in several establishments – both in the establishment that they are assigned to and in the establishment(s) where they manage employees (Federal Labor Court, decision of 22 May 2025 – 7 ABR 28/24).

Mistake 4: Incorrect appointment of the election committee

In establishments with an existing works council, the works council appoints the election committee, which must consist of at least three members eligible to vote (Section 16 (1) sentence 1 of the Works Constitution Act (BetrVG)).

Common errors include:

• Appointing fewer than three members
• Appointing an even number of members (Section 16 (1) sentence 3 of the Works Constitution Act (BetrVG))
• Appointing members who are not eligible to vote

The works council must appoint the election committee in good time: in the normal election procedure, no later than ten weeks before the end of the term of office of the incumbent works council; in the simplified procedure, no later than four weeks before the end of the term of office of the incumbent works council. If it fails to act in good time, the election committee may be appointed by the joint works council, the group works council or the labor court. Earlier appointments are also possible. However, if the appointment takes place more than twice as early as the statutory minimum period, this may - in exceptional cases – constitute an abuse of rights – for example, to bring about early special protection against dismissal in accordance with section 15 (3) of the Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz - KSchG). In this case, the appointment is invalid and the special protection against dismissal does not apply.

Mistake 5: Incorrect election notice

Particular care must also be taken when issuing and complying with the content requirements of the election notice. This must be issued by the election committee at least six weeks before the first day of voting. The minimum content requirements are specified in Section 3 (2) of the Electoral Regulations (Wahlordnung – WO). In practice, the information in the election notice is often incorrect or not provided at all.

We recommend checking whether

• the required number of supporting signatures for a valid election proposal,
• the number of works council members to be elected
• and the gender distribution in the establishment and in the works council to be elected

have been stated correctly.

The election notice must also be published in the correct manner. It must be ensured that all eligible voters are able to take note of it before the end of the voting period. In establishments with several business premises, the election notice must be displayed at each business premise. If it is updated, all previously displayed copies must be replaced.

An exclusively electronic announcement, e.g. on the intranet, is permissible if all eligible voters have access and only the election committee can make changes. However, an announcement exclusively by e-mail is not sufficient. An announcement at a central location – physical or virtual – is required.

Mistake 6: Incorrect election procedure

The applicable election procedure depends on the number of employees eligible to vote. In establishments with up to 100 eligible voters, the simplified election procedure must be used.

Establishments with 101 to 200 eligible voters generally apply the normal election procedure.

However, the employer and the election committee may agree to use the simplified procedure (Section 14a (5) of the Works Constitution Act (BetrVG)). An agreement between the wrong parties, such as the employer and the works council, is invalid and renders the election invalid.

In establishments with more than 200 employees eligible to vote, the normal election procedure must be followed; deviating agreements are not admissible.

Mistake 7: Improper influence on the election through violations of the requirement of neutrality

Employers may not influence works council elections by violating their duty of neutrality. However, this does not mean that any behavior that does not appear completely neutral makes the election contestable. Employers do not have to refrain from making any critical comments about the existing works council.

However, the line is crossed when false claims are made, or criminal insults are uttered. Expressions of sympathy for candidates are permitted, as is motivating employees to stand for election. It becomes inadmissible as soon as advantages are promised or granted – for example, if an employer offers an employee the prospect of promotion if they stand for election.

Mistake 8: Failure to comply with deadlines

Works council elections are strictly formalized and subject to numerous deadlines, which in practice are often miscalculated or not adhered to by the election committee.

The most important deadlines include:

• Issuing the election notice: no later than six weeks before the first day of voting; at the same time, the electoral rolls must be made available.
• Submission of nominations: to the election committee within two weeks of the election notice being issued.
• Announcement of the lists of nominations: no later than one week before the first day of voting.

Mistake 9: Insufficient information for foreign employees

An often overlooked aspect of works council elections is providing information to employees who do not have sufficient command of the German language. Before the election begins, the election committee should inform these employees in an appropriate manner about the election procedure, the compilation of the electoral roll and nomination lists, the voting process and how to cast their votes. In practice, this often does not happen, or at least not completely. It is important to note that communication in everyday working life should not automatically be taken to mean that an employee has sufficient German language skills for the works council election (Higher Labor Court Düsseldorf, decision of 12 January 2024 – 10 TaBV 51/23). Rather, language skills must be sufficient to understand the complex election regulations. In order to fulfil its duty, the election committee should also publish the election notices in languages that are understood by the foreign employees concerned. Employers should support the election committee in this regard.

Mistake 10: Incorrect determination and announcement of the election results

The determination and announcement of the election results are subject to strict formalities. Immediately after the close of voting, the election committee must count the votes publicly. Errors occur, for example, if employees are excluded during the counting process or if the room is too small to allow for adequate observation (Saxony Higher Labor Court, decision of 23 January 2024 – 3 TaBV 9/23). The ballot box must be opened and the votes counted in public.

After the vote, the elected candidates must be informed. They have three working days to reject the election; otherwise, the election is considered accepted. If an elected candidate rejects the election, the election committee must determine the successor. Only when it has been finally determined who has been elected and has accepted the election may the election result be announced.

Legal consequences of errors: contestability and invalidity of works council elections

Depending on their severity, errors in the election process can lead to the contestability or invalidity of works council elections.

Conclusion: identify errors, examine consequences

Employers should address any errors made by the election committee as early as possible. This gives the election committee the opportunity to correct any errors and conduct the works council election in a legally compliant manner. This increases the acceptance of the works council among employees and may prevent the works council election from being contested. However, if the errors are too serious, the employer can also have the validity of the works council election reviewed by a court if necessary.