# BAG on the Correction of Works Council Remuneration > The BAG clarifies when employers may correct the remuneration of released works council members after an earlier adjustment. Source: https://www.mtrlegal.com/en/bag-on-correction-of-works-council-remuneration/ · Language: en · Updated: 2026-10-19 --- ## Decision of the BAG on the remuneration of released works council members The [Bundesarbeitsgericht (BAG, Federal Labour Court) ruled](https://www.bundesarbeitsgericht.de/entscheidung/7-azr-16-25/) on 13 May 2026 – 7 AZR 16/25 (case no.) – on the subsequent correction of the remuneration of a fully released works council member. The decision of the 7th Senate bears the identifier ECLI:DE:BAG:2026:130526.U.7AZR16.25.0; the full text was made available on 27 August 2026. The key issue was the conditions under which an employer may reverse a previously granted remuneration adjustment where that adjustment had expressly been based on [§ 37 para. 4 BetrVG (German Works Constitution Act)](https://www.gesetze-im-internet.de/betrvg/__37.html) and had been implemented for years. The BAG clarified that a [released works council member](https://www.mtrlegal.com/wiki/betriebsrat/) may, in principle, rely on the accuracy of such an earlier notification. If the employer later wishes to deviate from it, it must substantiate and prove the objective incorrectness of the original calculation. ## Facts and collective bargaining background ### Employment, release from duties and remuneration level The defendant has been employed by an automobile manufacturer since 1987 and worked as an industrial mechanic. Since 2010, he has been fully released from his professional duties in order to perform his works council office. Upon taking up the office, he received remuneration according to pay grade 11. The remuneration was governed by the framework collective agreement on job grading concluded between the employer and the competent trade union. Under this agreement, employees are assigned to certain pay grades according to their predominant activity, in agreement with the works council. ### General works agreement and works council remuneration commission The basis for the remuneration adjustments was a general works agreement on a commission for determining the remuneration of the company’s works council members, which entered into force on 1 April 2012. This replaced an earlier arrangement of 30 May 1991. In February 2015, the employer informed the released works council member that his remuneration had been adjusted by the company-internal “Works Council Remuneration Commission” to pay grade 14 in line with comparable employees with customary career development within the undertaking pursuant to § 37 para. 4 BetrVG. This remuneration was subsequently paid for several years. ## Subsequent review and dispute over downgrading ### Formation of a comparison group in 2023 In 2023, the employer reviewed the remuneration of works council members again. For this purpose, it formed a comparison group and concluded that the defendant should be remunerated only according to pay grade 11. As a result, the employer withheld a net amount of EUR 1,735.70 as remuneration it considered to have been overpaid and reduced the ongoing remuneration. By contrast, the defendant claimed payment of the withheld remuneration and relied on the earlier notification concerning the remuneration adjustment. ### Counterclaim and further claim Procedurally, the employer acted as the claimant, while the works council member was the defendant. His claims for payment and for declaratory relief were pursued by way of a counterclaim. In addition, the defendant asserted a notional promotion claim; the Bundesarbeitsgericht did not issue a final decision on this, but remitted the case in this respect to the Landesarbeitsgericht for a new hearing. He sought remuneration according to pay grade 17 and later pay grade 18. He based this claim on the assumption that, without performing the works council office, he would have achieved corresponding professional development. ## Course of proceedings before the lower courts ### Decisions of the Arbeitsgericht and Landesarbeitsgericht The lower courts were the Arbeitsgericht Braunschweig (Labour Court of Braunschweig) with judgment of 19 September 2023 – 2 Ca 131/23 (case no.) – and the [Landesarbeitsgericht Niedersachsen (Lower Saxony Regional Labour Court)](https://www.mtrlegal.com/wiki/landesarbeitsgericht/) with judgment of 13 November 2024 – 8 Sa 685/23 (case no.). The Arbeitsgericht Braunschweig upheld the claim for payment as well as the auxiliary claim for remuneration according to pay grade 14. The Landesarbeitsgericht Niedersachsen dismissed the appeal. Both parties subsequently lodged appeals on points of law with the Bundesarbeitsgericht. ### Scope of the reversal by the BAG The Bundesarbeitsgericht reversed the judgment of the Landesarbeitsgericht only insofar as the claimant’s appeal and the defendant’s cross-appeal concerning the counterclaim had been dismissed. To this extent, the BAG remitted the case to the Landesarbeitsgericht for a new hearing and decision. ## Standards applied by the Bundesarbeitsgericht ### Principle of the burden of pleading and proof According to the BAG’s decision, a works council member must, in principle, demonstrate that his or her remuneration falls short of that of comparable employees with customary career development within the undertaking. This concerns the minimum remuneration guarantee under § 37 para. 4 BetrVG. However, if the employer has expressly notified an increase as an adjustment pursuant to § 37 para. 4 BetrVG and paid it for years, different requirements apply to a later correction. In that case, the employer bears the burden of pleading and proof that the earlier calculation was objectively incorrect. ### Reliance on an earlier adjustment notification The BAG emphasised that the works council member may, in principle, rely on the accuracy of such a notification. This applies in particular where the adjustment was expressly linked to the development of comparable employees with customary career development within the undertaking. For the assessment, the BAG requires reference to the specific activity performed by the works council member before taking up the office. A comparison with the activity actually performed before the release from duties is therefore required. If gaps in evidence arise due to the passage of time, these are borne by the company in the event of a subsequent correction. ## Distinction from the hypothetical promotion claim ### Increased requirements where career disadvantage is alleged The BAG assessed the asserted hypothetical promotion claim differently. For such a claim, the burden of pleading and proof generally remains with the employee. The works council member must demonstrate that he or she would have obtained the position sought without performing the works council office. According to the decision, this also includes demonstrating that he or she would have prevailed over all applicants, in particular over the candidate initially selected. ### Legal basis for a claim in the event of disadvantage due to works council office In the reasons for its decision, the BAG also clarified that a direct remuneration claim may arise from § 78 sentence 2 BetrVG in conjunction with § 611a para. 2 BGB (German Civil Code). The prerequisite is unlawful disadvantage due to the performance of the works council office. However, the burden of pleading and proof for such disadvantage generally lies with the works council member. The BAG thus draws a clear distinction between an adjustment based on the development of a comparison group and proof of an individually missed professional position. ## Two different protective mechanisms ### Minimum remuneration guarantee under § 37 para. 4 BetrVG The decision separates two areas of protection. § 37 para. 4 BetrVG protects the works council member from falling behind, in remuneration terms, the customary development within the undertaking of comparable employees. The decisive factor for this is a correctly determined comparison group. If an adjustment has already been notified as being based on § 37 para. 4 BetrVG and has been practised over a longer period, the employer must substantiate the incorrectness of the earlier assessment in the event of a later correction. ### Protection against individual disadvantage under § 78 sentence 2 BetrVG In addition, there is protection against disadvantages due to works council activity under § 78 sentence 2 BetrVG. This protection may also be relevant under remuneration law. However, where a hypothetical promotion is at issue, referring to possible professional development is not sufficient. Rather, it is necessary to demonstrate that the specific position would actually have been obtained without the works council office. ## Classification within a series of further proceedings ### Parallel decisions of the 7th Senate The decision of 13 May 2026 forms part of a broader context of several proceedings concerning the remuneration of released works council members. On the same day, the 7th Senate also decided the parallel case 7 AZR 15/25 (case no.), which likewise concerned an employee of an automobile manufacturer who had been employed for many years. Also on 13 May 2026, in proceedings 7 AZR 124/25 (case no.), the 7th Senate reversed a judgment of the Landesarbeitsgericht Niedersachsen of 26 May 2025 – 15 SLa 619/24 (case no.) – and remitted the case. ### Continuation of an already established line As early as 20 March 2025, the 7th Senate had decided in several parallel proceedings that the employer must plead and prove the incorrectness of a corrected remuneration increase that was evidently based on § 37 para. 4 sentence 1 BetrVG. The decision of 13 May 2026 continues this line. The matter is therefore not concluded. On 5 August 2026, the 7th Senate decided two further proceedings on the remuneration adjustment of released works council members with the case numbers 7 AZR 268/24 and 7 AZR 288/24; the decisions were made available on 12 October 2026. Further hearings of the 7th Senate on works council remuneration are scheduled, among others, for 11 November 2026 in proceedings 7 AZR 111/25 and for 16 December 2026 in proceedings 7 AZR 60/25. ## Significance for employment law practice The decision makes clear that subsequent corrections of works council remuneration may be subject to strict requirements if an express adjustment pursuant to § 37 para. 4 BetrVG was previously made. In this context, the activity performed when taking up the office, the comparison group linked to that activity and its customary development within the undertaking are of essential importance. At the same time, an independent assessment remains necessary where individual career losses are alleged. Anyone seeking remuneration on the basis of an allegedly missed promotion must, in principle, plead and prove the prerequisites for that specific professional advancement. The case thus demonstrates the clear separation between: - the minimum remuneration guarantee under § 37 para. 4 BetrVG, - protection against disadvantage due to the works council office under § 78 sentence 2 BetrVG, - the employer’s burden of proof when correcting an earlier adjustment, - the works council member’s burden of proof where a missed promotion is alleged. For companies, works council members and senior decision-makers, issues relating to the remuneration of released works council members can have considerable employment law and economic significance. MTR Legal Rechtsanwälte provides support with corresponding issues as part of its [legal advice in employment law](https://www.mtrlegal.com/rechtsberatung/arbeitsrecht/).