Politics in the company?

• Germany

• Employment law

20-09-2021

The political and legal Corona measures were and are a subject of discussion between managers, employees, works councils and trade unions in 2021.

Now the federal elections are coming up in Germany. Political debates do not stop here either. This is reason enough to recall a few principles of labour law on how to deal with political issues in the workplace.

I. Employment relationship as a politically neutral sphere

In the workplace, people "meet" to work during working hours and not to discuss party programmes or to position themselves for/against candidates for the Bundestag. Accordingly, party political activities by workers are not permitted if they endanger industrial peace or disrupt work processes.

Wearing clothes with party-political advertising, wearing badges or playing party-political videos are likely to disturb the peace in the workplace and impair work processes.

Admonishment, warning and dismissal may be the consequence of such behaviour in breach of duty. If the party-political activity takes place in the workplace during working hours, a reduction in remuneration would also be conceivable.

Finally, the employer does not have to tolerate the use of his work equipment for political advertising. Election posters in the workplace, email advertising or party-political video meetings with the employer's laptops and email accounts are generally not permitted.

II. Party politics with the help of the works council

In their function as spokespersons or representatives of the workers in the company, works council members can strongly influence the party-political opinion of the workforce.

Departmental and works meetings, works council newspapers, notices, circulars, leaflets, video conferences are theoretically extremely effective instruments and platforms for local works councils, general or group works councils and the JAV to reach a large number of voters.

When a works council member acts politically in the workplace, the following essential questions have first to be clarified.

• Is the action taken as a works council member, i.e. in his official mandate?
• Does he express himself in party-political or general-political terms?
• Is industrial peace endangered in the abstract or are work processes disturbed?

The different "hats" of a works council member are well known. If he acts as an employee, the restrictions under I apply.

If he is acting in his function as works council member, he has to observe the party-political neutrality obligation of the Works Constitution Act - which, by the way, also applies to the employer.

This means that he may not position himself either for or against candidates of certain parties or parties themselves.

However, general political statements such as on climate or environmental protection, right-wing radicalism and xenophobia or peace movements would be permissible. The boundaries can be fluid here. A good advice here has always been to measure the political statement against its effect in the workplace.

If the employer and the works council put this item on the agenda of a jour fixe and mutually agree on party-political neutrality, conflicts could be avoided. Invitations of individual party politicians to company events in times of election campaigns are always risky actions.

If the works council member or the entire body acts in breach of duty, the sanctions of section 23 of the Works Council Constitution Act (BetrVG) may be imposed. Whether exclusion from the works council or even dissolution of the works council body is appropriate depends on the severity and number of violations.

Alternatives may initially be warnings under works constitution law or resolution procedures on the determination of unlawful action.

III. Trade union politics versus party politics

Trade unions represented in the workplace are allowed to access the workplace and thus to works councils and employees for various reasons. Trade union action in the workplace is not subject to the party-political neutrality requirement of the Works Constitution Act. Nevertheless, party political action in the workplace is not to be tolerated. The motto is: "Recruitment of members - yes; party-political advertising - no".

It is advisable to agree in advance on a party-political "silence" with the responsible representative of the relevant trade union(s).

If trade unions use company events, premises or work equipment of the employer for party-political advertising, action against this should be taken by way of legal injunctions or admissible self-help. Even house bans would be justifiable in individual cases.

IV. How party-politically the employer may present itself?

The party-political neutrality obligation of the Works Constitution Act also applies to the employer as in his role as a party of the operations. In this respect, speeches, lectures and communication concepts in the workplace should only include general political and corporate policy statements.

V. Existence of barriers outside the operations?

Yes, if employees engage in party political activities outside the workplace and disparage the employer, its industry, colleagues or managers, this may result in sanctions under labour law, up to and including dismissal.

It is partly recognised that works council members may refer to their mandate as works council members at party-political events and advertising activities outside the workplace. However, here, too, a disparaging effect on the employer, the employees and the employer's business partners must be examined and, if necessary, sanctioned.