The Bundesarbeitsgericht (BAG, Federal Labour Court) has clarified the special protection against dismissal afforded to employees who take preparatory steps to establish a works council. According to the BAG, judgment of 30 July 2026 – case no. 2 AZR 70/25, the right to invoke protection as a preliminary initiator under § 15(3b) Kündigungsschutzgesetz (KSchG, German Protection Against Dismissal Act) may be forfeited. This applies if the employer is unaware of the relevant facts and the employee does not assert the special protection against dismissal within a period that is generally three weeks after receipt of the notice of dismissal. The claimant’s appeal on points of law against the judgment of the Thüringer Landesarbeitsgericht (Thuringia Higher Labour Court) of 22 January 2025 – case no. 1 Sa 59/24 – was unsuccessful, with the claimant ordered to bear the costs.
Dispute Over an Ordinary Dismissal
Employment in a Small Business
The claimant had been employed by the defendant since 1 April 1993 or, until a transfer of business at the beginning of 2021, by its legal predecessor. She worked as an education officer and, with a degree of disability of 30, had been granted status equivalent to that of a severely disabled person.
In addition to her, the defendant regularly employed four other employees. All employees were adults and had worked at the establishment for more than six months. It was therefore a small business within the meaning of § 23(1) sentence 2 KSchG.
With regard to the notice period, the most recently applicable employment contract of 20 June 2007 referred to § 34 of the Tarifvertrag für den öffentlichen Dienst der Länder (TV-L, Collective Agreement for the Public Service of the German Federal States). In all other respects, the provisions of the TV-L were to apply only insofar as the contract expressly referred to them. Under § 17(1) of the contract, earlier employment contracts were to cease to be valid.
Approval by the Integrationsamt and Dismissal
In 2021, the claimant received two formal warnings. These were based primarily on the allegation that she had acted on her own authority and contrary to instructions. On 20 May 2022, the defendant applied to the Integrationsamt (Integration Office responsible for matters concerning severely disabled employees) for approval of an intended ordinary dismissal.
During a staff meeting on 25 May 2022, the parties discussed complaints about the claimant’s working methods and shortcomings that the defendant considered to exist. At the same time, the defendant offered the claimant a termination agreement.
By decision of 28 September 2022, the Integrationsamt approved the ordinary dismissal. After her administrative objection was unsuccessful, the claimant initiated administrative court proceedings against that decision, which, according to the findings in the judgment, had not yet been concluded. The defendant subsequently terminated the employment relationship by letter dated 30 September 2022 with effect from 31 March 2023.
Preparation of a Works Council Election
Claimant’s Notarised Declaration of Intent
The claimant had been a member of the works council at the defendant’s legal predecessor. Following the staff meeting, she asked the lawyer who later represented her in the proceedings about options for resolving the matter under collective labour law in view of the impending dismissal.
In this context, they discussed the fact that the transitional mandate of the works council existing at the legal predecessor was limited in time and that there was no works council at the defendant’s establishment. Given the number of employees, the election of a works council was possible in principle. The claimant received information about the statutory requirements for a works council election and the special protection against dismissal applicable to preparatory activities.
On 31 August 2022, she made a declaration of intent, and her signature was notarised on 1 September 2022. In it, she declared that she intended to establish a works council at the defendant. In a letter dated 1 September 2022, she also informed a colleague that she wished to speak with her and the other employees about their willingness to hold a works council election as soon as possible.
Unfair Dismissal Proceedings and Appeals
The claimant brought an unfair dismissal claim within the statutory time limit. As a precaution, she asserted in her statement of claim that the dismissal was also invalid under § 15 KSchG. Initially, however, she did not disclose the specific facts on which she based her status as a preliminary initiator.
In addition, she argued, among other things, that:
- The dismissal had been issued before formal service of the Integrationsamt’s approval decision.
- Her employment relationship could not be terminated by ordinary dismissal on the basis of § 53(3) Bundes-Angestelltentarifvertrag (BAT, Federal Collective Agreement for Salaried Employees).
- The dismissal was, at the very least, contrary to good faith under § 242 Bürgerliches Gesetzbuch (BGB, German Civil Code).
- The dismissal was disproportionate because no preventive procedure under § 167(1) Sozialgesetzbuch IX (SGB IX, Book IX of the German Social Code) had been conducted.
It was not until a written submission received by the Arbeitsgericht (Labour Court) on 19 January 2024 that the claimant expressly invoked special protection against dismissal as a preliminary initiator under § 15(3b) KSchG. In this context, she also submitted the declaration of intent dated 31 August 2022. This occurred approximately 15 months after she had received the notice of dismissal.
The Arbeitsgericht initially upheld the unfair dismissal claim and the alternative claim for continued employment. It dismissed the additional general claim for declaratory relief as inadmissible. On the defendant’s appeal, the Landesarbeitsgericht (Higher Labour Court) partially amended the first-instance decision and dismissed the action in its entirety.
Requirements for Protection as a Preliminary Initiator
Two Cumulative Requirements
The BAG first confirmed that the claimant had met the statutory requirements of § 15(3b) sentence 1 KSchG. She was therefore a preliminary initiator within the meaning of that provision.
Special protection against dismissal requires the employee to:
- undertake a preparatory act aimed at establishing a works council; and
- make a publicly certified declaration stating that they intend to establish a works council.
The protection applies against ordinary dismissals based on reasons relating to the employee personally or to their conduct. It begins no earlier than the public certification of the declaration of intent. Under § 15(3b) sentence 2 KSchG, it ends upon the invitation to a staff or election meeting, but no later than three months after the publicly certified declaration was made.
In principle, the order in which the two requirements are met is irrelevant. What matters is that both requirements are objectively satisfied. The employer’s knowledge is not required for the protection to arise.
Broad Interpretation of Preparatory Acts
According to the BAG’s interpretation, the term preparatory act encompasses any conduct perceptible to third parties that is capable of preparing a works council election. This may include, in particular, discussions with other employees about supporting the establishment of a works council, planning further steps and obtaining information about the election procedure.
Advice concerning the requirements for a works council election may also constitute a suitable preparatory act. Merely internal intentions, by contrast, are insufficient. The purely subjective desire to establish a works council must be supplemented by outwardly perceptible action.
The preparation does not have to be successful. Neither the actual establishment of a works council nor an invitation to a staff meeting is required to meet the statutory criteria. However, objectively unsuitable measures are not covered, such as initiatives in an establishment that is not eligible to have a works council or in an establishment where a works council already exists.
Requirements for the Declaration of Intent
The employee may draft the declaration of intent themselves. It must indicate the intention to establish a works council and should identify the establishment concerned as specifically as possible. Public certification is performed by a notary under § 129 BGB.
Both requirements were met in the case decided. The claimant had made the certified declaration of intent, approached a colleague about holding a works council election at short notice and obtained advice about the requirements for such an election. The fact that no further steps were taken and that no works council election was held did not alter this conclusion.
Moreover, the claimant received the notice of dismissal within the maximum three-month protection period. According to the findings of the Landesarbeitsgericht, the defendant based the dismissal on reasons relating to the claimant’s conduct.
Forfeiture Due to Delayed Assertion
Abuse of Rights Did Not Require a Final Determination
The BAG left open whether the chronological sequence of the application for approval by the Integrationsamt, the staff meeting, the consultation and the certification of the declaration of intent could constitute an abuse of rights. Such an abuse might be considered where an employee creates the necessary conditions solely to obtain protection against dismissal without having any genuine interest in establishing a works council.
That question was not decisive. In the court’s view, the claimant had in any event forfeited under § 242 BGB her right to invoke the protection afforded by § 15(3b) KSchG.
Time and Reliance Elements of Forfeiture
Forfeiture is one form of an impermissible exercise of rights. The mere passage of an extended period is not sufficient. There must also be circumstances on the basis of which the obligated party was entitled to assume that the right would no longer be asserted.
Two elements are therefore required:
- The time element concerns the period during which the entitled party did not assert their right.
- The reliance element requires conduct that creates legitimate reliance on the part of the other party.
Finally, the obligated party’s interest in the protection of legitimate expectations must so clearly outweigh the entitled party’s interest that the subsequent exercise of the right can no longer reasonably be expected.
General Three-Week Period
The BAG applied to § 15(3b) KSchG the principles developed for the special protection against dismissal afforded to severely disabled persons and persons with equivalent status. If the employer is unaware of the conditions giving rise to protection as a preliminary initiator, the employee must generally invoke that protection within three weeks of receiving the notice of dismissal. Alternatively, the employee may inform the employer within this period of the facts from which the special protection against dismissal arises.
The three-week period is not an absolute exclusion period. Exceeding it generally, but not necessarily, results in forfeiture. The time required for the notification to reach the employer must also be taken into account.
According to the BAG, this time limit reflects the interest in the expeditious resolution of dismissal protection matters. Employees and employers should promptly obtain clarity as to whether the employment relationship continues. This is expressed in particular in the three-week period for bringing an action under §§ 4 and 7 KSchG and in other short time limits under dismissal protection law.
Disclosure After Notice of Dismissal
Section 15(3b) KSchG does not require an employee to disclose their preparatory acts before a dismissal. The purpose of the protection is precisely to cover the high-risk initial phase of establishing a works council.
After receipt of a notice of dismissal, however, the balance of interests changes. If the employer is unaware of both the certified declaration and all preparatory acts, it cannot assess whether the dismissal is invalid due to previously unknown special protection against dismissal or when a further dismissal might become possible.
The employee must therefore, within the general three-week period, either expressly invoke the protection under § 15(3b) KSchG or inform the employer about the preparatory act and the publicly certified declaration of intent. If the employer is already aware of both, there is no corresponding obligation to disclose them.
General Reference to § 15 KSchG Was Insufficient
At the time of the dismissal, the defendant was at least unaware of the notarised declaration of intent. It did not learn of it until the written submission of 19 January 2024. It was therefore unnecessary to determine whether the defendant had already been aware of the claimant’s letter to her colleague.
According to the judgment, the precautionary statement in the claim that the dismissal was invalid and impermissible under § 15 KSchG was insufficient. Section 15 KSchG contains several protective provisions with different requirements. The general wording did not indicate that the claimant specifically intended to invoke her status as a preliminary initiator under § 15(3b) KSchG.
From the defendant’s perspective, the statement could also have referred to possible existing or continuing protection enjoyed by the claimant as a former works council member at the legal predecessor. Her express reliance on § 15(3b) KSchG approximately 15 months after receipt of the notice of dismissal was therefore out of time.
Further Objections to the Dismissal
Integrationsamt’s Approval Remained Effective
The dismissal was not invalid under § 134 BGB in conjunction with § 168 SGB IX. When the dismissal was issued, the Integrationsamt’s approval decision of 28 September 2022 was in place.
Under § 171(4) SGB IX, such a decision generally remains effective until it has been revoked by a final administrative or judicial decision. The decision was not void. If the approval is revoked only after the unfair dismissal claim has been dismissed by a final judgment, an action for retrial under § 580 Zivilprozessordnung (ZPO, German Code of Civil Procedure) may be available.
The BAG held that the procedural objection concerning whether the decision had been formally served on the defendant before the notice of dismissal was received was not persuasive.
No Exclusion of Ordinary Dismissal
The employment relationship could be terminated by ordinary dismissal. Section 53(3) BAT did not apply directly because the claimant was not bound by the collective agreement. It was unnecessary to determine whether and on what basis that provision had previously been incorporated into the employment contract.
In any event, any earlier provision had ceased to be valid pursuant to § 17(1) of the employment contract dated 20 June 2007. In the BAG’s view, this contractual provision was clear and comprehensible.
The claimant had not relied on protection from ordinary dismissal under § 34(2) TV-L. According to the unambiguous wording of the contract, the contractual reference to § 34 TV-L covered only the notice periods. The employment contract also expressly clarified that the right to ordinary dismissal remained unaffected.
No Requirement for Social Justification
The dismissal did not have to be socially justified under § 1(1) KSchG. Including the claimant, the defendant employed no more than five employees and was therefore a small business under § 23(1) sentence 2 KSchG.
According to the findings of the Landesarbeitsgericht, there was no joint establishment with the legal predecessor. The claimant did not challenge this finding in her appeal on points of law.
Failure to Conduct a Preventive Procedure
The absence of a preventive procedure under § 167(1) SGB IX did not, in itself, render the dismissal invalid either. Because § 1 KSchG was inapplicable, a dismissal in a small business was not subject to a proportionality review under the standards of general protection against dismissal.
The BAG also clarified that a preventive procedure under § 167(1) SGB IX is not required before a dismissal is issued in a small business. Accordingly, the dismissal could not be regarded as invalid due to a breach of the prohibition of discrimination under § 164(2) SGB IX in conjunction with the Allgemeines Gleichbehandlungsgesetz (AGG, German General Equal Treatment Act).
No Breach of Good Faith
A dismissal in a small business may violate § 242 BGB if it is based on arbitrary, irrelevant or discriminatory motives. According to the findings of the Landesarbeitsgericht, there were no indications of such circumstances.
Even if the allegations made against the claimant had been inaccurate, the BAG considered that this would not, without more, establish that the dismissal was contrary to good faith.
Decision on the Continued Employment Claim
The claimant had brought the continued employment claim only in the alternative, in the event that her unfair dismissal claim was successful. Since the unfair dismissal claim was dismissed, the alternative claim did not fall to be decided.
Nevertheless, the Landesarbeitsgericht had ruled on the continued employment claim and thereby violated § 308(1) sentence 1 ZPO. The BAG corrected this error of its own motion. A formal corrective order was unnecessary because the part of the decision concerning the continued employment claim was devoid of subject matter and the operative part ultimately did not require amendment.
Significance for Special Protection Against Dismissal
The decision draws a clear distinction between the protection arising and its subsequent assertion. The claimant met all the requirements of § 15(3b) sentence 1 KSchG and was a preliminary initiator. In this respect, her claim failed solely because she did not specifically invoke this protection against the defendant until approximately 15 months after the dismissal.
In its judgment of 7 May 2026 – case no. 2 AZR 191/25 – the Second Senate had already ruled that § 15(3b) KSchG applies neither directly nor by analogy to preliminary initiators of a staff council election. The BAG ruled on another appeal on points of law concerning the protection of preliminary initiators on 10 September 2026 under case no. 2 AZR 192/25.
Decision 2 AZR 70/25 was published in the official case law database on 19 October 2026. It illustrates that a certified declaration of intent and suitable preparatory acts may initially trigger protection even without the employer’s knowledge. After notice of dismissal has been issued, however, delayed disclosure may result in forfeiture under § 242 BGB.
Employment Law Advice from MTR Legal
Questions concerning special protection against dismissal, works council elections and the validity of dismissals regularly depend on the specific circumstances and chronology of the individual case. MTR Legal Rechtsanwälte advises companies, investors and private individuals in employment law disputes and on the legal assessment of matters involving protection against dismissal. Further information is available under Employment Law Advice.
