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The Works Council Election 2022 as a challenge for employers (part 3) – Special challenges in times of the pandemic

21 January 2022

Home office obligation, restrictions on meetings, 3G in the workplace - these are just some of the framework conditions for this year's works council elections. In Part 3 of our series of articles on works council elections, we provide a brief overview of the particularities of the elections, many of which are now already in preparation.

'To read in German, view here' 

The pandemic, which has been going on for almost two years, does not stop at the works council elections. Works meetings and personal presentation of candidates are - if at all - only possible to a limited extent. Home office duty and voting in person come into conflict with each other. 

In the following, we present some particularities of this year's works council elections.

1.    Works meeting to appoint election committee (Wahlversammlung) 

If there is no works council, the election committee is elected at a works meeting. Due to the Corona-related restrictions on meetings, this may be difficult in individual cases. However, employers should not make any efforts to prevent the election meeting because of this. Although it is discussed that in the current situation the election committee can therefore be appointed directly by the labour court for infection control reasons, we do not consider this to be correct: The law stipulates that such a substitute appointment is only permissible if, despite an invitation, no works meeting has taken place or no election committee has been elected at it. In order to avoid delays caused by negative court decisions, it is therefore recommended that - at least pro forma – a works meeting be invited. If this meeting is not (or cannot be) held, the prerequisites for a court order are fulfilled.

However, an essential part of any meeting is an appropriate hygiene concept. It is the responsibility of those inviting to the meeting (employees or trade union) to prepare this concept. In order to avoid possible unnecessary costs and health hazards to the workforce, the employer should actively support them in this. On the basis of his domiciliary right, he can also demand the presentation of an adequate hygiene concept for meetings that take place on the premises.

2.     List of candidates

A major challenge in many workplaces with home offices will be the collection of the required supporting signatures for a list of candidates. Digital or scanned signatures are not valid. However, it is accepted that the supporting signatures can also be spread over several sheets: The original list must be signed personally by all candidates. Copies of this list can be sent in parallel to individual colleagues for signature. It should be noted, however, that original and copies must be identical in content and numbered consecutively. Furthermore, they must be physically bound together (e.g. stapled) before submission to the election committee.

3.     Election advertising

The offices are often deserted, colleagues meet - if at all - only virtually. In this environment, it is difficult to get a high turnout and thus a representative representation of the workforce. It is equally difficult for the candidats to introduce themselves to the worcforce. It will be illegitimate for each election candidate to make virtual appointments with individual colleagues during working hours to introduce themselves. Especially in the case of larger workforces, all election candidates would otherwise be occupied only with the election campaign for long periods of time, which the employer does not have to tolerate.

But how can the employees be reached in an appropriate way? The employer could organise a virtual staff meeting together with the election committee, where all candidates can present themselves. It will probably also have to be considered permissible if candidates - to a reasonable extent - contact their colleagues internally by e-mail. However, if they are flooded with e-mails, the employer can prohibit this as it disrupts the work routine. In addition, those who do not have their own e-mail address or a company computer may have to be allowed to make such contact on request if this is necessary to maintain equal opportunities. Especially this year, it is therefore advisable for the employer to agree on appropriate rules with the candidates in advance. Attention: It is not permitted for an election candidate to forward internal distribution lists to a private e-mail address and to contact their colleagues from there.

The employer may not out the private addresses of employees to election candidates for them to send election advertising. A proactive employer may send out appropriate candidate profiles to all employees themselves to promote the election, but must ensure that it gives all candidates the same opportunity (including in the scope of the presentation).

4.    Voting - electronic or general postal voting?

Even though online voting is widely advertised on the internet and some companies have decided to offer it as an additional option, electronic voting is not provided for by law and is therefore unfortunately not permitted. Every eligible voter must manually put their cross on the ballot paper. Voting online renders the election contestable (see part four of our series of articles).

Similarly, it is not permissible to send postal voting documents to all eligible voters in order to simplify voting or to decide as an election committee on a general postal vote. The law regards voting in person as the rule. Postal vote is only permitted as an exception if there are certain reasons stated in the law (see Part 2 of our series of articles.) The currently existing restrictions at the workplace cannot be used as an additional reason for a general postal vote. Both the Works Constitution Act and the electoral regulations were amended last year during the existing pandemic. These amendments included temporary special regulations for the period of the pandemic. Also, the admissibility of sending postal ballot papers by the election committee without a request by the employee was extended. If the legislator had wanted a general postal vote, at least a temporary provision would have been included, similar to the provision for the election of representatives of the severely disabled.

Consequently, any person entitled to vote who is not in the workplace on election day must apply to the election committee for a postal vote, unless the election committee is aware of the absence. This may be the case due to the nature of the employment or due to prolonged illness. In the latter case, however, the employee must be absent for the entire period from the issuance of the election notice to the time of the election. A short-term illness or a quarantine order shortly before the election is not sufficient. This means in practical terms for the possibility to send postal voting documents:

  • If an employee is on short-time work zero – sending documents without request 
  • If an employee is only on short-time work on election day - sending documents only on request
  • If an employee 100% in home office - sending documents without request
  • If an employee is flexibly in the home office on one or more days per week - sending documents only on request

But what if employees basically work at home but still come to the office regularly or irregularly? It seems to be reasonable that postal voting documents can be sent to all employees without request for whom home office is not excluded for urgent operational reasons (§ 28b (4) Infection Protection Act) or who have not indicated to the employer that they cannot work from home. According to the assement of the legislator, they work from a home office at least for a limited period of time.

It should be noted that, as of today, the obligation to work from home expires on 19 March 2022. A decision on a possible extension will probably not be made until the beginning of March. As the preparation and implementation of the postal vote requires a certain amount of time, the election committee must usually make the decision to send the election documents without respective request three to four weeks before election day. If, in the case of an election date after 19 March, the election committee has to make this decision before a decision has been made on a possible extension of section 28b (4) Infection Protection Act, it must be allowed a certain leeway in its assessment. In doing so, it must take into account the pandemic situation and the current political discussion.

The employer must provide the election committee with the information required for the postal vote, in particular the private addresses of the employees. In some cases, courts have ruled that the employer is obliged to provide the election committee with the addresses of all employees, even if the requirements for a postal vote are not (yet) met. However, this is questionable from a data protection point of view. The employer is always obliged to check the basis for the transfer of personal data and should therefore work closely with the election committee on this point.

What happens if, despite best efforts, mistakes are made in the works council election? We explain this in the fourth part of our series.

If you have any questions about the works council election, our colleagues in our offices in Berlin, Düsseldorf, Cologne and Munich will be happy to help you at any time by phone or e-mail.

Further Reading