Germany: No special protection against dismissal for employees who wish to establish a works council during the probationary period

Munich Regional Labour Court, judgment of 20 August 2025 - 10 SLa 2/25

On 20 August 2025, the Munich Regional Labour Court ruled that the special protection against dismissal under Section 15(3b) of the German Act Against Unfair Dismissal (Kündigungsschutzgesetz - KSchG) does not apply during the six-month waiting period under Section 1 (1) KSchG. Furthermore, an employee can no longer invoke this protection if they do not inform their employer of the existence of the conditions set out in Section 15 (3b) KSchG promptly after receiving notice of termination – late assertion of this right leads to forfeiture.

On the commencement of special protection against dismissal for so-called "preliminary initiators"

The plaintiff had been employed by the defendant as a security guard since 7 March 2024. Immediately after the start of the employment relationship, he had a notary certification on 13 March 2024 that he intended to establish a works council. In an email dated 20 March 2024, he then asked the defendant whether a works council already existed and, in the event that no works council existed, announced his intention to establish one and to convene a works meeting to elect an election committee. In a letter dated 21 March 2024, the defendant terminated the employment relationship with the plaintiff with effect as of 28 March 2024, or alternatively at the next possible date. The plaintiff filed an unfair dismissal claim, initially invoking a violation of the prohibition of obstruction with regard to the election of a works council pursuant to Section 20 (1) of the German Works Constitution Act (Betriebsverfassungsgesetz – BetrVG). It was not until his written statement of 15 October 2024 (i.e. around seven months after the notice of termination was issued) that he additionally claimed that, as the initiator of a works council election, he was covered by the special protection against dismissal provided for in Section 15 (3b) KSchG. The defendant objected that Section 15 (3b) KSchG did not apply to dismissals within the six-month waiting period specified in Section 1 KSchG. According to the wording, this only covers dismissals that were issued for reasons "relating to the person or conduct of the employee". The dismissal during the probationary period, on the other hand, was based on the plaintiff's unsuitability as a security guard.

Legal framework and decision

Section 15 KSchG is intended to ensure that the persons named therein – such as works council members – have the necessary independence in the performance of their duties. Section 15 (3b) KSchG specifically concerns so-called preliminary initiators, i.e. employees who intend to establish a works council and therefore enjoy special protection against dismissal. According to the wording of the provision, two conditions must be met for the special protection against dismissal to apply: The employee must have taken preparatory steps to establish a works council and must have submitted a publicly certified declaration stating that he or she intends to establish a works council. Furthermore, the provision states that dismissal is inadmissible in this case if it is based on reasons relating to the employee's person or conduct, unless there are facts that entitle the employer to dismiss the employee for good cause without observing a notice period. Furthermore, the provision does not specify a specific period within which the employee must invoke special protection against dismissal vis-à-vis the employer.

The labour court had upheld the claim in the first instance, as it considered the requirements of Section 15 (3b) KSchG to be fulfilled. However, the Munich Regional Labour Court ruled otherwise. Two aspects relating to the scope of application of Section 15 (3b) KSchG were taken into account in this decision. On the one hand, the special protection against dismissal under Section 15 (3b) KSchG does not apply during the six-month waiting period under Section 1 (1) KSchG. Rather, the interpretation of the provision indicates that it only applies to dismissals within the temporal scope of application of the Unfair Dismissal Protection Act. On the other hand, the Munich Regional Labour Court ruled that the right to invoke the special protection against dismissal under Section 15 (3b) KSchG was forfeited approximately seven months after the notice of termination was issued. This was because the plaintiff had not invoked this right within the three-week period for bringing an action for protection against dismissal, nor within three months of submitting the officially certified declaration.

Practical significance and forecast

In practice, the special protection against dismissal under Section 15 (3b) KSchG usually only becomes relevant once the employment relationship with the employee has already been terminated and the employee invokes the special protection against dismissal in the context of the dismissal protection proceeding. In this context, employers should, on the one hand, check whether the officially certified declaration of intent to establish a works council was actually submitted before the notice of termination was issued and request that it be presented to them. This is because the special protection begins with the submission of the officially certified declaration and applies until the date of the invitation to a works council or election meeting, but for a maximum of three months. Employers must also check whether the dismissal was issued within the six-month waiting period and whether the employee invoked special protection against dismissal within three months of the declaration being submitted at the latest.

The ruling is not yet final. The Munich Regional Labour Court has allowed an appeal with regard to the as-yet-undecided legal issues of the applicability of Section 15 (3b) KSchG during the probationary period and the forfeiture of the right to invoke special protection against dismissal. A clarification of these issues by the highest court is desirable in the interests of legal certainty.

For more information on limited protection during the waiting period with regard to severely disabled persons and the lack of an obligation to carry out a prevention procedure, please click here.