Judgment of the Labour Court of Cologne of 24 March 2021 in Case No. 18 BVGa 11/21
Working from home and virtual meetings are the new normal for many companies since the onset of the coronavirus. Yet when infection rates fall and lockdowns are lifted, the question arises as to what extent employers can order employees to return to the office. At this point, it is necessary to comply with the current rules. The Labour Court in Cologne held that the order of an employer on the works council to hold meetings at the workplace and the imposition of sanctions for failure to comply with this order was not legitimate and the employer therefore had to refrain from such actions until at least 30 June 2021.
Facts of the case
When its stores were closed during the 2020 lockdown, the employer, a textile company, tolerated the fact that the works council meetings were held via video conference. In November, the employer ordered the works council to hold its meeting at the company offices and threatened to dock salaries if the works council failed to comply. It also acted on this threat in relation to three members of the works council, who still took part in a meeting from home at the end of 2020. After the end of the second lockdown, the employer announced further wage cuts and written warnings. When five members of the works council participated in their regular meeting from home in March, they received written warnings for their failure to attend (in person). In response, the works council turned to the Labour Court and applied for injunctive relief against the pay cuts, written warnings and threats of dismissal.
The Labour Court ordered the employer to cease and desist from docking any pay, or issuing any written warnings or letters of termination to the members of the works council for participating in works council meetings from home until 30 June 2021. These measures prevented members of the works council from carrying out their duties (§ 78 (1) Works Constitution Act, BetrVG). The measures that had already been taken meant that they had to fear that letters of termination of employment would also be issued. The fact that § 129 (1) BetrVG allowed members of the works council to participate in works council meetings from home via video or telephone conference meant that the order constituted a prohibited obstruction of the discharge of their duties. This temporary norm applied until 30 June 2021 and had to be respected until then.
The norm does not establish any specific conditions that have to be fulfilled to virtually attend a works council meeting. Restriction on the forms of participation therefore could only be derived from the rule that the works council and employer should work together in the spirit of mutual trust (§ 2 (1) BerVG). A breach of this rule was not to be feared in this case. Instead, the employer should encourage virtual participation in meetings as it simultaneously helps reduce the risk of infection.
Consequences for practice
The judgment of the Labour Court is one in a line of jurisprudence. The Regional Labour Court of Berlin-Brandenburg (Judgment of 24 August 202 in Case No. 12 TaBVGa 1015/20) and the Labour Court of Berlin (judgment of 7 October 2020 in Case No. BVGa 12816/20) both held that the chairperson of the works council is responsible for any vote on the form of the meeting. There is no statutory norm, which would give the employer a right to influence this decision. It falls within the discretion of the chairperson of the works council to reach a decision; § 129 (1) BetrVG gives the chairperson the choice. The circumstances at the workplace and the local infection rates will influence the decision of the works council to hold a meeting virtually.
Until now, the decisions concerning § 129 (1) BetrVG demonstrate that employers have little influence on the decision of the chairperson of the works council on the form of the meeting. Nonetheless, the works council can be required not just to decide freely but to consider certain circumstances in each case. The employer can seek judicial review. Further sanctions, such as written warnings or pay cuts are not recommended.
Author: Regina Holzer