Situation of the Procedure
In the case at hand, the question was whether an employee can already claim special protection against dismissal if they wish to initiate the establishment of a works council during the probationary period. The specifics to clarify were, in particular, what requirements the Works Constitution Act (BetrVG) imposes on special protection against dismissal and from what point this protection begins.
The decision was based on a dismissal protection procedure in which the employee contested a dismissal during the probationary period and claimed special protection due to the intended establishment of a works council. The source of the depiction is the published decision of the Munich Regional Labor Court (LAG Munich, judgment of 19.02.2025, Case No. 10 SLa 225/24), available at: https://urteile.news/LAG-Muenchen_10-SLa-225_No-Special-Protection-against-Dismissal-for-Employees-Wishing-to-Establish-a-Works-Council-during-Probationary-Period~N35778.
Legal Framework: Protection Against Dismissal During Probation and Special Protection against Dismissal
Dismissal During the Probationary Period
During the probationary period, simplified dismissal options usually apply, in particular due to shortened notice periods. Independently of this, in certain situations, special protection against dismissal may apply that is not linked to the general waiting period of the Dismissal Protection Act.
Special Protection Against Dismissal in Relation to Works Councils
The BetrVG provides for special protection against dismissals for certain persons involved in the election of a works council or who carry out certain functions. This protection serves to ensure free and uninfluenced works council activities and the undisturbed conduct of elections. However, the decisive factor is whether the legal prerequisites have already been met at the particular time.
Key Statement of the LAG Munich
The LAG Munich denied special protection against dismissal in the situation where an employee intends to establish a works council or considers preparatory steps but has not yet acted in a way that triggers special protection as defined by the BetrVG.
According to the decision, it is not sufficient for an employee to merely pursue the intention of establishing a works council or to address this in the company. What matters is whether a legally relevant position or action exists that connects the special protection against dismissal specifically to the BetrVG.
Distinction: Intention, Preparation, and Protected Activity
No Protective Effect Through Mere Intent to Establish
The mere motivation to establish a works council does not, according to the valuation assumed by the LAG Munich, establish an independent special protection against dismissal. The protection mechanism of the BetrVG is linked to clearly definable stages and roles, and not merely to internal retention or a general objective.
Connection to Formalized Steps
Special protection against dismissal arises under the statutory concept only where participation in or inclusion in a regulated election or appointment procedure becomes concrete and visibly manifests in a form captured by law. The court thus emphasized the importance of formal, verifiable connection points.
Classification of the Decision for Company Practice
The decision clarifies the systematic nature of the BetrVG: that special protection is not linked to every activity broadly associated with forming a works council, but to the legal elements explicitly protected by the legislator. This maintains the principle that during the probationary period, no additional protective effects generally apply unless a specific legal protection is substantively established.
Note on Source Status
The above depiction is based on the published court decision of the LAG Munich (judgment of 19.02.2025, Case No. 10 SLa 225/24) as well as reporting accessible at https://urteile.news/LAG-Muenchen_10-SLa-225_No-Special-Protection-against-Dismissal-for-Employees-Wishing-to-Establish-a-Works-Council-during-Probationary-Period~N35778. No further fact-finding is thus associated; only the published content of the decision is reproduced in the legal context.
Transition: Need for Clarification in Dismissals and Company Codetermination
Questions at the intersection of probationary period, dismissal, and company codetermination often concern the exact classification of the concrete facts within the legal elements and the case law issued thereto. If legal aspects need to be examined in an individual case, you can find contact information at MTR Legal here: Legal Advice in Employment Law.
