The Works Council Consultation Prior to Dismissal: What Employers Need to Bear in Mind

October 2026 – Authors: Attorney Till Heinrich, Attorney Volker Mauch

A termination may be carefully prepared under labor law and well-founded in substance. However, if the works council was not consulted—or was not consulted properly—before the termination was issued, this formal error can render the termination invalid.

For employers, therefore, the works council hearing is far more than a mere formality. Errors during the hearing can result in the employment relationship continuing, the employee having to remain employed, and additional costs arising from wages for delay in acceptance as well as substantial litigation costs. Many of these risks can be avoided if the hearing is systematically prepared, fully conducted, and transparently documented.

If a company has a works council, the employer must consult with it prior to any termination (Section 102(1) of the Works Constitution Act (BetrVG)). This applies regardless of whether the employer intends to issue an ordinary, extraordinary, or modification termination; whether the Unfair Dismissal Protection Act applies; whether the employee is still in the waiting period; or whether the employer considers the termination to be manifestly justified.

The consultation may be conducted by the employer personally or by a person authorized for this purpose. As a general rule, proof of authorization does not need to be provided to the works council. The works council therefore cannot reject the consultation solely on the grounds that no power of attorney was presented.

If the works council was not consulted before the termination was issued, the termination is generally invalid. If a hearing did take place but formal errors were present, it may be deemed improper, which can also lead to the termination being invalid.

In labor court proceedings, the labor court no longer examines the grounds for termination or the termination itself in such a case; rather, the termination is invalidated solely due to the improper involvement of the works council.

Precisely because such formal errors are often avoidable, employers should devote the same attention to the works council hearing as they do to preparing the termination itself. The following rules should therefore be strictly observed:

No specific form of hearing is required by law. Theoretically, therefore, the hearing may also take place orally. Nevertheless, employers are strongly advised to consult with the works council at least in writing and to document the consultation letter along with all relevant documents.

This is because, in any subsequent proceedings for protection against dismissal, the employer must demonstrate and prove that the works council was properly consulted. A complete and comprehensible consultation letter is typically the most important evidence for this purpose.

Depending on the reason for termination, the letter should, for example, be accompanied by the following documents:

• written warnings,

• meeting notes,

• investigation results,

• relevant correspondence,

• documentation of breaches of duty, or

• documents related to a dismissal based on suspicion.

In the event of a dispute, it is often difficult to reconstruct an oral hearing in a convincing manner. Written documentation therefore reduces not only legal risks but also organizational risks.

The employer must consult with the works council regarding the dismissal that it actually intends to carry out. The type of dismissal must therefore be clearly and unambiguously specified.

For example, if the employer plans an extraordinary dismissal, or alternatively an ordinary dismissal, the works council must be explicitly consulted on both types of dismissal. A consultation regarding an extraordinary termination does not automatically replace the consultation regarding an ordinary termination.

Particular care is also required when distinguishing between a termination based on proven misconduct and one based on suspicion. Legally, these are different grounds for termination, and the works council must be properly consulted on each in turn.

During the works council consultation, the essential social data of the affected employee must be accurately stated. Incorrect, incomplete, or contradictory information can jeopardize the validity of the subsequent termination.

The following are typically relevant:

• Name of the employee,

• position or job description,

• length of service,

• notice period,

• age,

• existing maintenance obligations,

• severe disability or equivalent status, and

• any existing special protection against termination, if applicable.

In addition, other specific circumstances may play a role, such as pregnancy, parental leave, caregiving leave, membership on the works council, or other statutory provisions regarding protection against termination.

Employers should verify this information against the personnel file and current employment data before sending the notice of hearing. Particularly in the case of long-term employment relationships or complex personal circumstances, employers should not rely exclusively on outdated master data.

The works council must be enabled to properly assess the employer’s intention to terminate the employment relationship. Therefore, the employer must communicate the facts it considers relevant accurately, completely, and in a comprehensible manner.

This includes not only incriminating circumstances. Exculpatory facts that may be relevant to the assessment of the grounds for termination must not be withheld either. It is crucial that the works council be able to issue an appropriate statement based on the information provided.

Particularly important for employers: In subsequent proceedings for protection against wrongful termination, the termination can generally be based only on those facts and breaches of duty that were the subject of the works council hearing.

If the employer becomes aware of additional facts relevant to the termination after the hearing has concluded, a supplementary or new hearing may therefore be necessary. A hasty termination without examining this point can create additional risks of invalidity.

Special rules apply to terminations occurring within the first six months of employment. In such cases, a brief evaluative statement—such as that the employee failed to meet expectations—may generally suffice.

If, however, the employer bases the termination on specific facts or breaches of duty, these must be communicated fully and accurately. In practice, therefore, a decision should be made in advance regarding which strategy for justifying the termination should actually be pursued.

In the case of a termination for operational reasons, it is not sufficient to merely describe the elimination of the previous need for employment. The employer must also regularly explain to the works council the other considerations relevant under termination law.

These include, in particular:

• the business decision,

• the loss of the need for employment,

• possible vacant positions within the company,

• the possibility of continued employment following appropriate training,

• the implementation of the social selection process or the reasons why a social selection was not necessary, and

• the relevant criteria for comparable employees.

If several employees are comparable to one another, the relevant social data—such as length of service, age, support obligations, and severe disability—as well as the assessment derived from them should be presented in a transparent manner.

An inadequate presentation of the possibilities for continued employment or the social selection process may prevent the works council from properly exercising its participation rights.

The employer must not issue the notice of termination prematurely. The employer must first await the works council’s final statement or wait until the statutory comment period has expired.

The deadlines are generally as follows:

• one week for ordinary termination,

• three days for extraordinary termination (Section 102(2) of the Works Constitution Act (BetrVG)).

Whether the works council actually submits a statement and the content of that statement are generally not decisive for the validity of the termination. What matters is that the consultation was conducted properly and that the employer observes the expiration of the comment period.

However, an objection by the works council may have further legal consequences, in particular the employee’s right to provisional continued employment under Section 102(5) of the Works Constitution Act (BetrVG).

Errors in the works council hearing are among the most common avoidable reasons for the invalidity of a termination. Employers should therefore not treat the hearing procedure as a mere formal intermediate step, but rather as a separate and carefully scrutinized part of the preparation for termination.

A comprehensive, truthful, and well-documented hearing helps avoid unnecessary unfair dismissal proceedings as well as further cost and liability risks. An early legal review is particularly advisable in cases of extraordinary terminations, terminations for operational reasons, or terminations declared as alternative grounds.

We advise and represent employers on all matters related to the termination of employment relationships—from reviewing the grounds for termination to preparing and conducting the works council hearing, through to unfair dismissal proceedings.

In particular, we provide support with:

• the legal assessment of planned terminations,

• the drafting and review of consultation letters,

• the classification of special protection against dismissal,

• terminations for operational reasons and social selection,

• extraordinary terminations as well as terminations based on actual or suspected misconduct,

• determining whether a supplementary or repeat works council consultation is required, and

• representation in proceedings for protection against dismissal.

Contact us early on. We will review the specific facts of your case and guide you through the process to ensure legal compliance.