Works council elections present employers with numerous legal challenges. Learn about your obligations, which mistakes can lead to election challenges and how to build a constructive working relationship.
Works Council Election 2026: What Employers Need to Know
Regular works council elections take place every four years, and 2026 again sees new elections in many companies. For employers, the works council election is a sensitive process: on the one hand, you are obliged to remain neutral and must neither obstruct nor improperly influence the election; on the other hand, you bear organisational obligations and must cover the costs. Violations of election regulations can lead to election challenges and cause considerable disruption within the company. This article provides you with a comprehensive overview of your rights and obligations as an employer in connection with the works council election.
Prerequisites for the Works Council Election
Company Size and Eligibility to Vote
Pursuant to § 1 Abs. 1 of the Betriebsverfassungsgesetz (BetrVG), works councils are elected in establishments with normally at least five permanent employees entitled to vote, of whom three must be eligible for election. All employees who have reached the age of 16 are entitled to vote. Employees who have been with the establishment for at least six months are eligible for election.
Important: Temporary agency workers are entitled to vote under current law if they have been deployed in the establishment for more than three months. They generally also count towards the determination of the establishment's size but are not eligible for election.
Definition of Establishment
The works council election takes place at the level of the establishment, not the company. A company may have several establishments, each of which elects its own works council. The demarcation of the establishment is frequently disputed in practice, particularly in the case of branch operations, matrix organisations or cross-establishment structures.
The Electoral Board
Appointment of the Electoral Board
The works council election is conducted by an electoral board. Where a works council already exists, it appoints an electoral board consisting of three eligible employees no later than ten weeks before the end of its term of office. Where no works council yet exists, the electoral board can be elected at a works meeting by a majority of the employees present. Alternatively, the labour court may appoint an electoral board upon application.
Dismissal Protection for Electoral Board Members
Members of the electoral board enjoy special protection against dismissal under § 15 Abs. 3 KSchG. Ordinary dismissal is prohibited from the time of appointment until six months after the announcement of the election result. Only extraordinary dismissal for cause is possible under the strict requirements of § 626 BGB and with the consent of the works council (where one exists).
Course of the Election Process
The Regular Election Procedure
The regular election procedure under §§ 14 ff. BetrVG and the Election Regulations (WO) comprises the following steps:
- Issuance of the election notice: The electoral board issues an election notice no later than six weeks before election day, containing the election date, the place for casting votes, the voter list and the deadline for nomination proposals, among other details.
- Preparation of the voter list: The electoral board prepares a list of all eligible voters. The employer is obliged to provide the information required for this purpose.
- Submission of nomination proposals: Within two weeks of the issuance of the election notice, nomination proposals (candidate lists) may be submitted.
- Conduct of the election: The election is conducted as a secret and direct ballot. Depending on the size of the establishment, either a personal vote or a list vote takes place.
- Counting and announcement: The electoral board counts the votes and publicly announces the result.
The Simplified Election Procedure
In establishments with 5 to 100 eligible voters, the simplified election procedure under § 14a BetrVG applies as a matter of principle. In establishments with 101 to 200 eligible voters, the electoral board and the employer may agree to apply the simplified procedure.
The simplified procedure is a two-stage process: at a first election meeting, the electoral board is elected. At a second election meeting, held one week later, the works council is elected. Nomination proposals are submitted orally at the second election meeting. This procedure is considerably faster and less formal.
Employer Obligations
Duty of Neutrality
The employer's most important obligation is the duty of neutrality under § 20 Abs. 2 BetrVG. No one may obstruct the election of a works council or improperly influence it. This applies in particular to the employer. Prohibited conduct includes:
- Obstruction of the election: Refusal to provide work materials, rooms or information to the electoral board
- Threats and promises: Threatening disadvantages for candidates or promising benefits for non-candidacy
- Partisan campaigning: Active support by the employer for particular candidates or lists
- Intimidation: Statements likely to deter employees from standing as candidates or casting their votes
Support Obligations
At the same time, the employer is obliged under § 20 Abs. 3 BetrVG to actively support the election:
- Duty to provide information: The employer must provide the electoral board with all necessary information, in particular a current list of eligible employees with first and last names, dates of birth and length of employment.
- Provision of material resources: Rooms, office supplies, copiers, notice boards and other necessary materials must be provided free of charge.
- Release from work: Members of the electoral board must be released from work for electoral board duties without any reduction in pay.
Cost Bearing
All costs of the works council election are borne by the employer pursuant to § 20 Abs. 3 Satz 1 BetrVG. These include:
- Costs for election materials, ballot papers, ballot boxes and postal voting materials
- Costs for releasing electoral board members from work
- Necessary training costs for the electoral board
- Travel costs for establishments with multiple locations
- Costs for engaging expert third parties, where necessary
Dismissal Protection for Candidates
Not only electoral board members but also candidates enjoy special dismissal protection. Under § 15 Abs. 3 Satz 2 KSchG, ordinary dismissal of a candidate is prohibited from the time the nomination proposal is submitted until six months after the announcement of the election result. This protection is intended to ensure that employees can stand for the works council without fear of employment-related consequences.
Common Mistakes Leading to Election Challenges
A works council election may be challenged under § 19 BetrVG if material provisions relating to the right to vote, eligibility for election or the election procedure have been violated and the violation could have affected the election result. Typical grounds for challenge attributable to the employer include:
- Incomplete or incorrect employee lists: Where eligible employees are not included in the voter list because the employer provided incomplete data, this can render the election challengeable.
- Refusal to provide material resources: If the employer fails to provide the electoral board with the necessary resources, this may be deemed an obstruction of the election.
- Improper influence on the election: Statements by the management that could be understood as intimidation or influence on the election are a common ground for challenge.
- Failures in communication: Where employees, particularly field staff or part-time workers, are not informed about the election in good time, this may lead to a challenge.
The challenge must be filed with the labour court within two weeks of the announcement of the election result. At least three eligible employees, a trade union represented in the establishment or the employer are entitled to challenge the election.
After the Election: The First Steps
Constitutive Meeting
The newly elected works council convenes for its constitutive meeting within one week of election day. There it elects the chairperson and deputy chairperson from among its members. Until then, the oldest works council member issues the invitation to the meeting.
Building a Constructive Working Relationship
The quality of the working relationship between employer and works council is largely shaped in the first weeks and months after the election. The following recommendations can help to build a constructive relationship:
- Early introductory meeting: Seek a conversation with the new works council chairperson promptly. Clarify the expectations of both sides and agree on communication channels.
- Regular meeting schedule: Establish fixed, regular meetings for exchange between management and the works council.
- Transparent information policy: Inform the works council about planned measures at an early stage, even before the duty to consult formally applies. Early involvement builds trust.
- Enable training: New works council members are entitled to training under § 37 Abs. 6 BetrVG. Support this entitlement, as a competent works council is also in the employer's interest.
- Make use of works agreements: Works agreements create legal certainty for both sides and can enable flexible, tailored solutions for the establishment.
Trustful Cooperation Under § 2 BetrVG
The Betriebsverfassungsgesetz obliges employers and works councils in § 2 Abs. 1 BetrVG to engage in trustful cooperation for the benefit of employees and the establishment. This principle is not merely aspirational but has concrete legal implications. It prohibits in particular industrial action between employer and works council and obliges both sides to engage in an objective, solution-oriented manner.
A well-functioning works council can be a valuable partner for the employer: it understands the mood within the workforce, can act as a mediator in conflicts and contributes to the acceptance of change processes.
Conclusion
The works council election is a strictly regulated statutory process that requires both restraint and active support from employers. Those who know and observe the rules avoid legal risks and lay the foundation for productive cooperation with the employee representation. The most common problems arise not from malicious intent but from a lack of awareness of the legal requirements.
At compleneo, we advise employers comprehensively on all aspects of works constitution law, from preparing the works council election through ongoing cooperation to negotiating works agreements. Contact us early so that we can set the course for a constructive partnership together.
