Protection of Works Council Members

Prohibition on disadvantage

A works council member may not be disadvantaged because of their membership of the works council or because of (the manner in which) they perform their participation duties. This protection applies to all aspects of the employment relationship and is therefore not limited to dismissal. Decisions concerning, for example, salary, performance evaluations, promotion, (re)deployment, training, or changes in position also fall within the scope of the prohibition on disadvantage.

Disadvantage is not always immediately visible. It may take subtle forms, such as the denial of development opportunities or negative performance reviews without proper substantiation. It is not necessary for the employer to have intended to disadvantage the works council member. What is decisive is whether there is a connection between the works council activities and the disadvantage suffered by the employee.

The prohibition on disadvantage also applies to persons other than works council members, such as the professional secretary and committee members. The works council itself, its members, and these other persons may initiate proceedings before the subdistrict court (kantonrechter) if there is (alleged) disadvantage. The court’s assessment depends on the circumstances of the case, such as the timing of a decision, previous evaluations, internal communications, and whether comparable decisions were taken in respect of non–works council members.

If a works council member makes it plausible that disadvantage has occurred which may be related to their works council activities, the employer must demonstrate that the decision was based on other, objective grounds. Depending on the nature of the disadvantage, the subdistrict court may impose various measures, such as withdrawing a performance evaluation, reversing a dismissal, or granting or paying benefits that were previously withheld.

Prohibition on dismissal

In addition to the prohibition on disadvantage, the law provides works council members with a so-called prohibition on dismissal during their term of office. The employment contract may not be terminated during membership of the (central or group) works council or a works council committee, and up to two years thereafter, or during placement on a list of candidates. As long as an employee has this status, the employment contract may not be terminated.

The prohibition on dismissal does not mean that a works council member can never be dismissed. The law provides for exceptions. For example, the prohibition does not apply if the employee consents to the termination, in the case of dismissal during a probationary period, or in the event of summary dismissal. In the context of a reorganisation, the prohibition does not apply in the event of a company closure, or if the works council member has been employed for more than 26 weeks at the position that is being eliminated. This 26-week requirement is intended to prevent abuse, where a works council member is placed in a position that is shortly thereafter eliminated as part of a reorganisation. Dissolution of the employment contract of a works council member by the subdistrict court is possible if there is a reasonable ground for dismissal that is unrelated to works council membership. Examples include culpable conduct, poor performance, and a disrupted working relationship, provided these grounds can be separated from the works council role and are independently sufficient to justify dismissal.

Here too, the court assesses all facts and circumstances to determine whether there is a connection between the intended dismissal and works council membership. The works council member invoking the prohibition on dismissal must make this connection plausible. If successful, the employer must then demonstrate that there is no such connection. If the employer fails to do so due to a lack of clear and objective substantiation, the subdistrict court will not dissolve the employment contract.

Protected, but not absolute

The prohibition on disadvantage and the prohibition on dismissal form an important foundation for the independent position of the works council. As a result, works council members face fewer personal risks when carrying out their participation duties. This protective regime contributes to effective employee participation. For employers, this means that extra care is required when making decisions affecting works council members. Disadvantage or dismissal is not impossible, but objective justification and a well-documented file are essential.

Want to know more? Please contact our Employment Law team.

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