Works council activities: Does an incapacity for work also constitutes an incapacity to hold office?

Facts of the case

Due to continuous incapacity for work since December 2022, an aircraft refueller and works council member had not attended any works council meetings since then. In a letter from his solicitor dated November 2025, he informed the works council chair that, despite his continuing incapacity for work, he did be able to resume his duties and requested to be invited to works council meetings again from that point onwards. The works council chair rejected this in early December 2025, citing the continuing incapacity for work. Consequently, on 8 December 2025, the refueller applied for an injunction to be invited to all meetings of the works council. The Frankfurt am Main Labour Court dismissed the application, inter alia on the grounds of lack of urgency, as the applicant had accepted his non-invitation to works council meetings for years. The applicant lodged an appeal against this decision.

The decision

The Hesse Regional Labour Court ordered the works council chair to invite the sick member to all works council meetings – except for agenda items in which he himself is involved. The incapacity for work does not automatically imply the incapacity to hold office. An elected works council member has, in principle, the right to attend meetings. The certificate of incapacity for work relates only to the contractually required work as an aircraft refueller, but not per se to the ability to perform works council duties. The physically demanding work of an aircraft refueller differs significantly from attending works council meetings or discussions with employees. As long as the member concerned does not signal a willingness to perform their duties, the works council may indeed regard their absence as an impediment. However, should this change – as is the case here through the explicit declaration of fitness for office – the presumption of impediment ceases to apply. The works council chair must then duly summon the works council member again.

The Regional Labour Court also based its decision on the fact that, if the case were referred to the main proceedings, the applicant would effectively be excluded from office. The current term of office of the works council was due to end in March 2026 with the scheduled re-election. The Appeal Chamber considered the urgency, which had been denied at first instance, to be established due to the special circumstances: the applicant had demonstrated that he had only been informed of the difference between incapacity for work and incapacity to hold office shortly before taking action.

Implications for practice

In its ruling, the Hesse Regional Labour Court (LAG Hessen) confirms the distinction between the duties owed under an employment contract and the role of works council member. These are to be regarded as separate from one another. The Federal Labour Court (BAG) has already made it clear in the past that an inability to work does not automatically lead to an inability to hold office.

Only in the specific case of works council members who are fully exempt from work does a certificate of incapacity for work continue to preclude them from performing their duties (Federal Labour Court, 28 July 2020 – 1 ABR 5/19).

Practical tip

In practice, this means that works councils must treat sick colleagues with care. A blanket policy of not inviting works council members on long-term sick leave is risky. At the latest following an explicit declaration of fitness to hold office, there is an unrestricted obligation to invite them to all non-personal agenda items. Otherwise, there is a risk of resolutions being invalid due to an incorrect composition of the body. Conversely, works council members who are ill should clearly indicate – preferably in writing – their willingness to perform their duties in order to safeguard their rights. The ruling also underscores the importance of interim legal protection in works constitution law: particularly during the elections currently taking place, mandate rights can, if necessary, also be secured by court order. Employers, in particular, should bear all this in mind, especially when dealing with the new committees.