In its judgment of 20 September 2012 (ref. no. 6 AZR 155/11),
the Federal Labor Court considered that a possible contravention of
the formal requirement that the employer must provide information
to the works council in the event of mass redundancies (Section 17
(2) KSchG [German act on protection against unlawful dismissal])
may be remedied by a final statement made by the works council if
the employer has provided it with the information required by the
act in an unsigned text.
In the case underlying the decision, the employee filed an
action against his dismissal. He was dismissed due to a
reconciliation of interests between the general works council and
the employer's insolvency administrator, the defendant in this
proceeding. The reconciliation of interests implied that the works
council had been informed and participated within the scope of the
negotiations according to Section 17 (2) KSchG and the
corresponding proceeding had thus to be considered as concluded.
The plaintiff thought that the defendant insolvency administrator
had failed to comply with his duty to provide information to the
works council and that the dismissal was thus ineffective. The
action he filed against that remained unsuccessful in all three
The Federal Labor Court could not find that the Defendant had
failed to comply with the requirement of providing the information
according to Section 17 (2) KSchG. It could be left undecided, it
stated, whether the duty to provide information required the
statutory requirement of written form as provided in Section 126
(1) BGB, since a possible breach of the requirement of written form
had in any case been remedied by the final and effective statement
by the general works council within the scope of the reconciliation
of interests. The information required for the duty to provide
information had only to be documented and forwarded to the works
council in a text which did not require a signature. That would
sufficiently make allowance for the purpose of the requirement to
provide information, namely giving the works council the
opportunity to submit suggestions to avoid mass redundancies, it
argued. The works council's final statement was an indication,
it stated, that it was no longer in the position to submit further
The Federal Labor Court's decision does not clarify in which
form the employer has to provide and document the provision of
information according to Section 17 (2) KSchG. However, it is
welcome news that the Federal Labor Court considers that a breach
of the form requirements may be remedied in cases where the works
council makes a final statement as to the information provided.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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