German Labour Court Rulings Tighten Rules on Remote Work Elections and Co-Determination
Veröffentlicht: 15.07.2026 um 01:33 Uhr, Redaktion boerse-global.de
Germany’s Federal Labour Court (BAG) has issued a series of landmark decisions that significantly raise the bar for works council elections and co-determination rights, with particular impact on remote teams and cross-border employers. The rulings, delivered in late January and May 2026, clarify when a workplace counts as an independent establishment and underline the strict formalities required for employee representation.
A delivery-service operator found its works council election invalid after the BAG ruled on 28 January 2026 that the location lacked an independent management structure. All key decisions were made centrally elsewhere. Simply having a local community of interest among employees, the court held, is not enough to justify a separate works council. In a second ruling the same day, the judges confirmed that digital connectivity alone does not create a separate part of an establishment—a local leadership apparatus is essential.
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Procedural pitfalls also matter. An election challenge submitted via email-to-fax arrived within the deadline, but missing a proper power of attorney rendered it void unless that defect was fixed inside the two-week challenge window. The BAG made clear that no grace period applies once the deadline expires.
A cross-border signal came from the Berlin-Brandenburg State Labour Court (LAG) in mid-April 2026. It granted provisional co-determination rights to the works council of an airline based at BER airport, even though the company is registered in Malta. The BAG had already confirmed in May 2026 that the German station qualifies for a works council. The LAG then prohibited the employer from implementing roster changes without the council’s involvement, reinforcing the position of local worker representatives in international groups.
Termination rules are also becoming stricter. The BAG ruled in late January that firing a severely disabled employee during probation is invalid if the representative body for disabled workers was not properly consulted. Simply stamping “acknowledged” on the hearing letter does not count as a final statement. Employers must wait the full one-week statutory period before issuing a dismissal.
Requirements for the return-to-work process (betriebliches Eingliederungsmanagement, or bEM) have similarly hardened. In a ruling on 7 May 2026, the BAG held that a digital delivery receipt for a registered letter does not prove that the bEM invitation actually reached the employee. If the employer cannot show receipt, the missing bEM is treated as a failure. A subsequent sickness-related termination then becomes disproportionate. Labour lawyers also note that if an employee who previously refused bEM is again unfit for work for more than six weeks, a fresh invitation is required.
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Co-determination rights around holiday scheduling remain a core issue. The works council has a say in general holiday principles and the holiday plan, but not in the length of leave. However, when employer and employee disagree on the timing in an individual case, the council must be involved.
New challenges arise from the coalition committee’s reform package of 2 July 2026. It would make a medical certificate of incapacity (AU) mandatory from day one and abolish phone-based sick notes. Labour law specialists emphasise that the works council has a co-determination right in designing these new reporting obligations. A separate bill to stabilise health-insurance contributions proposes partial incapacity for work: employees with long-term illness could return to parts of their job, with the employer having a one-week right to object.
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