Work Council Candidates retain the right to access the workplace during unfair dismissal proceedings for the purpose of campaining

Facts of the case

A works council member was dismissed without notice in November 2025 following the works council’s approval. She brought an action for unfair dismissal against this decision. Following the notice of termination, the employer denied her both physical and digital access to the workplace. As the employee wished to stand as a candidate again in the works council elections taking place in March 2026, she requested temporary access to the workplace for the purpose of campaigning, as well as access to the company’s communication tools, in particular her email account and Microsoft Teams. She considered merely distributing leaflets outside the company premises and using the website for works council campaigning to be insufficient. The employer, however, deemed these campaign options sufficient and stated that it could not justify granting digital access.

The employee subsequently filed an application with the court for an interim injunction to enforce her claims.

The decision

According to the Labour Court’s ruling, the employer is obliged to allow the employee access to the workplace premises on weekdays between 11:00 and 14:00 until the election, so that she may campaign during this time and introduce herself to those eligible to vote. This is necessary to avoid an unreasonable restriction of her right to stand for election and to effectively prevent any obstruction of her ability to stand for election. Pursuant to Section 8(1) of the Works Constitution Act (BetrVG), she is entitled to both the right to stand for election and the right to vote, despite her dismissal, due to the pending action for unfair dismissal. An employee who has been dismissed remains eligible for election to the works council if they have brought an action for protection against dismissal and this has not been dismissed with legal effect before the works council election takes place. By virtue of her eligibility, the employee must not be restricted to relying solely on means of contact outside the workplace.

In the case in question, the sole decisive factor in summary proceedings is whether the effective exercise of the right to stand for election would otherwise be unreasonably impeded. An assessment of the manifest unlawfulness of the dismissal is not to be carried out in these proceedings. The court bases its decision on the fact that, without prompt access, campaigning within the workplace would in any event be made more difficult.

Access to telecommunications facilities, i.e. in this case to the email server and electronic communication platforms (including Microsoft Teams), need not, however, to be permitted. There is no corresponding legal basis for this. Since the requested use is not available to other election candidates as a means of workplace communication during the election campaign either, there is also no breach of the principle of equal opportunity among election candidates or an impermissible obstruction of the election.

Consequences for practice

The Labour Court builds on one of the few court rulings issued to date on this subject (the decision of the Hamm Regional Labour Court of 6 May 2002 – 10 TaBV 53/02) and reaffirms the right of dismissed election candidates to access the workplace for the purpose of campaigning. For the first time, the court explicitly addresses the use of digital communication tools and makes it clear that access to these does not have to be guaranteed. The decision is not yet final.

Practical tip

This case does not represent a rare workplace situation. In principle, employers should grant dismissed election candidates limited, clearly regulated access to the workplace during ongoing works council elections so as not to impair their passive voting rights. Time slots should be chosen that do not disrupt business operations. Ultimately, the employer’s right to manage their premises is thus safeguarded by a clear and manageable arrangement, and costly disputes are avoided.

We would like to thank Eva Hinrichsen, trainee at our firm, for her contribution to this article.