On August 20, 2025, the Munich Regional Labor Court (Landesarbeitsgericht München) handed down a decision that is significant in practice (10 SLa 2/25). The court ruled that the special protection against dismissal for initiators of a works council election pursuant to Section 15 (3b) of the of the Dismissal Protection Act (KSchG) does not apply during the six-month waiting period pursuant to Section 1 (1) of the KSchG. In addition, the court considered the special protection against dismissal to be forfeited if an employee does not inform the employer of the requirements for special protection against dismissal promptly after receiving the notice of termination.
Background to the decision
With Section 15 (3b) of the KSchG, the legislator has created special protection against dismissal for so-called “preliminary initiators” of works council or a representative body for crew members in ships elections. Employees who prepare for the establishment of a works council or a representative body for crew members in ships and document this by means of a notarised declaration are to be protected against ordinary dismissals based on behavioural or personal reasons. Protected preparatory activities include, for example, discussions with other employees to gauge support for the establishment of a works council and discussions about the pros and cons of establishing a works council. If the requirements of Section 15 (3b) KSchG are met, protection against dismissal begins with the notarised declaration of intent and ends at the time of the invitation to a works, election, or meeting of crew members in ships, but no later than three months after the date of the notarised intention to establish a works council or board representation.
In practice, it was previously unclear whether this protection already applied during the waiting period under Section 1 (1) KSchG. The Munich Regional Labor Court has now ruled that this is not the case. In the court’s opinion, special protection against dismissal only applies after six months of employment.
Facts of the case
The plaintiff had been employed as a security guard since March 7, 2024. On March 13, 2024, he had a notarised declaration drawn up in accordance with Section 15 (3b) of the KSchG regarding his intention to establish a works council.
On March 20, 2024, he informed the employer by email that, if no works council existed, he intended to establish one and wanted to convene a works meeting. The following day, March 21, 2024, the employer terminated the employment contract with notice effective March 28, 2024, or alternatively at the next possible date.
The plaintiff filed an lawsuit for unfair dismissal and cited various reasons for the invalidity of the dismissal, in particular a violation of Section 20 (1) BetrVG (obstruction of a works council election). It was not until his written statement of October 15, 2024, that he additionally asserted special protection against dismissal under Section 15 (3b) KSchG. The employer was therefore not aware that the requirements of Section 15 (3b) KSchG were already met at the time the notice of termination was received.
Decision of the previous court
The Munich labour court (Arbeitsgericht München) had upheld the claim. It assumed that the requirements of Section 15 (3b) of the KSchG had been met.
It did not see any time limit or obligation to notify the employer of the special protection against dismissal. Consequently, the dismissal was invalid.
Judgment of the Munich Regional Labor Court
The Munich Regional Labor Court overturned this decision and dismissed the action.
In the court’s opinion, Section 15 (3b) of the KSchG does not apply during the six-month waiting period. Rather, the interpretation of the law is that it applies exclusively to terminations within the temporal scope of the KSchG.
In addition, the Regional Labor Court made it clear that the employee must inform the employer promptly—within three weeks of receiving the notice of termination, but no later than three months after submitting the publicly notarised declaration of intent—of the existence of the conditions for special protection against dismissal under Section 15 (3b) KSchG. Otherwise, the employee could no longer invoke this protection.
Significance for practice
With its ruling, the Munich Regional Labor Court has initially drawn clear boundaries for special protection against dismissal under Section 15 (3b) of the KSchG: Preparatory actions for the establishment of a works council do not offer any special protection against dismissal during the waiting period, which regularly coincides with the probationary period.
It remains to be seen whether the Federal Labor Court (Bundesarbeitsgericht) will confirm this line or opt for a more employee-friendly interpretation. If the BAG confirms the Munich Regional Labor Court’s ruling, this means for employers that dismissals of initiators during the waiting period are generally permissible but must be carefully documented. At the same time, it should be noted that even during this phase, dismissal may not be based on the initiative to establish a works council or a representative body for crew members in ships; a violation of the prohibition of obstruction under Section 20 (1) BetrVG or the prohibition of disciplinary action under Section 612a BGB would be inadmissible.
Irrespective of this, the special protection against dismissal under Section 15 (3b) KSchG prohibits, according to its wording, only ordinary dismissals for personal and behavioural reasons. Extraordinary dismissals and dismissals for operational reasons are therefore possible regardless of this case law.
AUTHOR
Christian Pellenz is Attorney at ALTENBURG, German firm of Ellint. He is focused on:
- Sports labor law
- Restructuring
- Redundancies
- Dismissal protection law
- Employment and service contract law
Law studies in Göttingen and Galway
Traineeship in Düsseldorf and CologneLanguagesGerman, English
