Requirements for the works council’s premises

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According to the German Works Constitution Act (Betriebsverfassungsgesetz, (BetrVG)), employers must provide the works council with the necessary premises for its meetings, consultation hours and ongoing management. In principle, the works council cannot demand specific rooms. However, when deciding which rooms to make available to the works council, the employer is restricted with regard to their ‘suitability’ for the works council's activities. The Higher Labor Court of Hesse (LAG) determined that the rooms of the works council must, inter alia, be visually private and soundproofed in such a way that they cannot be viewed and listened to by random witnesses (LAG Hesse, Decision of 31 July 2023, case no. 16 TaBV 151/22).

The case

The employer provided a room in the store for the works council to carry out its official duties. This room was then to be used as a manager's office by the branch manager and her deputy. The employer therefore made another office available to the works council. This was located about 500 meters from the store and on the second floor of a building that housed a real estate company on the first floor. The office consisted of two rooms. The first, open room, was connected to the real estate company's office by a staircase and could therefore be accessed by the real estate company's employees. There was also no soundproofing of the first room. The second, smaller room was located at the rear end of the first room and was separated from the first room by a door with a simple lock. The second room could be seen through a window from the first room.

Obligation of the employer

The employer must provide the works council with the necessary premises for its meetings, consultation hours and ongoing management (Section 40 para. 2 BetrVG). However, according to the case law of the lower courts, there is no entitlement to the provision of certain rooms or to retain the rooms previously used. The rooms must be of such a nature and functionally equipped that the works council can properly perform its duties. This impacts on, for example, the size of the room - corresponding to the number of members of the works council - and in particular being shielded from the view and hearing of non-members. It must also be possible to lock the rooms to ensure that the often sensitive works council documents are stored securely.

Rooms provided did not meet requirements

The court held that the rooms made available to the works council in the case in dispute did not meet these requirements. Because the first, open room was generally unsuitable for confidential discussions, only the second room could be used for meetings. At the same time, however, this second room could be viewed from the first room, meaning that confidentiality could not be guaranteed there either. Furthermore, the second room could not be locked with a security lock, so that the secure storage of the works council's documents and work equipment could not be guaranteed.

Practical note

In principle, the employer may decide which rooms it makes available to the works council; it may also change this allocation. However, certain criteria must be taken into account when selecting the rooms. The rooms must not only be large enough and equipped in such a way that the works council can perform its duties properly. Attention must also be paid to visual privacy and soundproofing and the necessary safety measures. In practice, the requirements to be complied with in this respect often lead to disputes between the employer and employee representatives - also due to a lack of corresponding high court rulings. In practice, it is therefore necessary to check on a case-by-case basis whether the works council may request a different room or whether the allocated room meets the requirements of the BetrVG.