Germany: Dismissal For Health Reasons - Pitfalls Surrounding The Works Council Hearing

Last Updated: 30 July 2013
Article by Franka M. Thomas

The dismissal of an employee for health reasons requires careful preparation and the observance of specific formalities if, in the case of an action against unlawful dismissal, the employer wants to prevail in court. If the company has a works council, the council must hold a hearing as prescribed in Section 102 Para. 1 S. 1 of the German Works Constitution Act (Betriebsverfassungsgesetz ; BetrVG) before notice of dismissal may be given. And if, as is often the case, this hearing is carried out incompletely or inaccurately, the notice is deemed to be ineffective, and the terminated employee is entitled to reinstatement.

This article gives an overview of the necessary elements of the works council hearing.

Timing of the Hearing

On the one hand, the hearing must take place before notice of dismissal is given to the employee. Unlike other declarations of intent, notice of dismissal is considered to have been given not upon its receipt by the employee being dismissed, but as soon as the written notice of dismissal has left the employer's sphere of influence. However, if the works council's hearing takes place after notice of termination has been sent to the employee, the dismissal will be considered ineffective, according to Section 102 Para. 1 S. 3 BetrVG.

On the other hand, at the time of the hearing, the employer must have already made the decision to dismiss the employee; merely considering the possibility is not sufficient. Therefore, a hearing for dismissal that is held when an employee's incapacity to work is foreseen but not yet a reality would be insufficient, since the actual situation permitting the dismissal has not yet occurred.

Form of the Hearing

The law does not prescribe a particular form for the hearing. However, for the purpose of proof, a written hearing is recommended. Moreover, receipt of the hearing letter should be confirmed in writing by the chairman of the works council, since only the employer obligated to furnish proof of a proper hearing in dismissal proceedings is able to document the hearing and the expiration of the term of the hearing.

Content of the Hearing

Section 102 BetrVG stipulates that the employer must inform the works council about the employee to be dismissed and the reasons for his or her dismissal.

The courts have substantiated these requirements. Accordingly, the works council must be informed of the following data regarding the employee: name; date of birth; period of employment; marital status; number of dependents (to the extent known); nationality; and any severe handicaps or equivalent status (again, to the extent known). In larger enterprises, the employee's personnel number and function must also be included.

The hearing is convened primarily to assess the reason for the dismissal. A general statement to the effect that notice of dismissal is to be given because of absences due to illness is not sufficient. Rather, the employer must also inform the works council of all the facts on which it intends to base the dismissal.

In the case of permanently ill employees where it is certain that they will not become capable of working again, submitting a medical certificate or the declaratory decree by the social insurance agency is sufficient. Moreover, in the case of employees who are not permanently ill, the employer must not only document the absences accrued so far, but also state why it is acting on the assumption that illnesses are to be expected in the future as well (i.e., provide the reason for the negative forecast).

In the case of dismissal due to frequent short-term illnesses, the employer must list chronologically each day of absence since the commencement of the employment period, as well as each separate illness (to the extent known). Furthermore, the employer must explain the extent to which the employee's illnesses led to operational disruptions. If the dismissal is to be based on sick-pay costs, it is necessary to document when additional costs were accrued because the employee's absences necessitated overtime work by colleagues or the hiring of substitutes. Furthermore, the hearing must specify whether the dismissal is to be given with or without notice and when it shall become effective.

According to the principle of subjective determination, it is sufficient for the employer to disclose to the works council the reasons that, from the employer's point of view, form the basis for the dismissal, even if these reasons do not ultimately support the dismissal. Deliberately incomplete and/ or incorrect depictions will deem the hearing (and thus the dismissal) to be ineffective, as will deliberate concealment of circumstances that would have exonerated the employee, e.g., a medical certificate that predicts a quick recovery. If the employee in question is subject to special protection against dismissal pursuant to Section 15 of the German Protection Against Dismissal Act (Kündigungsschutzgesetz ; KSchG) (as would be the case in the termination of a works council member for cause), the works council must not only be heard but also expressly approve of the dismissal (pursuant to Section 103 BetrVG). If approval is not granted by the works council, there is a possibility that it may be granted judicially.

Period for Comment

The period for the works council's comment in the case of dismissal with notice pursuant to Section 102 Para. 2 S. 1 BetrVG is one week from receipt of the hearing information. A request for comment, however, is not necessary. If the employer substantially amends its assertion within this period, the period commences anew. If the works council conclusively comments on the intended dismissal within this period, the period ends at that time. For a comment to be considered conclusive, it must clearly indicate that the works council does not want any further discussion of the case. When in doubt, the employer should wait for the oneweek period to lapse.

Response of the Works Council

The works council may respond in a number of ways:

  • The works council may expressly declare its approval of the intended dismissal. If this is the case, the hearing is considered to have been completed prior to the expiration of the time limit, pursuant to Section 102 Para. 2 S. 1 BetrVG.
  • The works council may remain silent with regard to the hearing. In such a case, the hearing does not end until the legal term of preclusion has ended. Approval of the dismissal is considered to have been granted after the time limit has lapsed, at which point the employer must provide notice, pursuant to Section 102 Para. 2 S. 2 BetrVG.
  • The works council may give formal notice that it has chosen to refrain from commenting on the intended dismissal. In the case of a dismissal with notice, the fiction of approval would apply with this notification. The process is then complete, and the employer may give notice of dismissal after receipt of this information, i.e., before the one-week period has lapsed.
  • Pursuant to Section 102 Para. 2 S. 1 BetrVG, the works council may express concerns regarding the dismissal. While expressing concerns—in contrast to lodging a formal objection—does not increase the likelihood that the dismissal will be overturned, it does encourage the employer to take the works council's concerns into consideration. However, if the expression of concerns takes the form of a conclusive comment, the process is complete and the employer may give notice of dismissal.
  • The works council may formally object to the dismissal, Section 102 Para. 3 BetrVG. The objection need not be designated as such; it is sufficient if it is unmistakably clear from the works council's response that it has rejected the dismissal. The objection must be based on one of the reasons stated in Section 102 Para. 3 BetrVG. In the case of an objection, the employee, if he or she takes action against unlawful dismissal, has a right of reinstatement until a binding court decision regarding the action has been made, Section 102 Para. 5 BetrVG. The employer may counter the right of the employee to continue working by following the procedure described in Section 105 Para. 1 S. 2 BetrVG (filing a motion for an injunction before the court), according to the strict conditions stipulated therein.

To read this article in full click here.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions