Effectiveness of dismissals in the event of minor errors in the consultation procedure and in the notification of mass dismissals

Hamm Regional Labor Court, November 6, 2025, Ref. 15 SLa 634/25

In its decision of November 6, 2025, the Hamm Regional Labor Court clarified that minor errors in the consultation procedure and in the mass dismissal notification do not necessarily render a dismissal for operational reasons invalid. The decision is not yet final; an appeal has been allowed.

Background

In the event of a mass dismissal, the employer must provide the works council with relevant information in good time in accordance with Section 17 (2) of the German Employment Protection Act (KSchG), in particular regarding the number and occupational groups of the employees to be dismissed. In addition, a mass dismissal notification must be submitted to the Employment Agency in accordance with Section 17 (1) and (3) KSchG. The consultation procedure and the notification procedure are independent of each other and serve in different ways to achieve the objective pursued by the protection against mass dismissals.

Facts

The parties disputed the validity of a termination for operational reasons in the context of a plant closure due to insolvency. The plaintiff had been employed by the insolvent debtor as a machine setter and operator since October 1, 2016. A works council had been formed at the insolvent debtor; at the time of filing for insolvency, it employed a total of 43 employees.

After the opening of insolvency proceedings and the appointment of the defendant as insolvency administrator, the latter decided, based on the offers received, to close down the business and sell off individual assets. In a letter dated February 11, 2025, the defendant initiated negotiations with the works council on a reconciliation of interests and a social plan, the consultation procedure pursuant to § 17 (2) KSchG (German Employment Protection Act) and the works council hearing pursuant to § 102 BetrVG (German Works Constitution Act).

However, the consultation letter dated February 11, 2025 contained contradictory information regarding the number of employees to be laid off: the introduction mentioned 61 employees to be laid off, while the attached table only listed 31 employees. The subsequent mass dismissal notification dated February 25, 2025 then mentioned 34 employees to be laid off.

On February 25, 2025, the defendant and the works council concluded a reconciliation of interests and a social plan. The plaintiff was given notice of termination by letter dated February 26, 2025, effective May 31, 2025.

The plaintiff considered the termination to be invalid, among other things because of the incorrect implementation of the consultation procedure and the notification of mass dismissals. The Hagen Labor Court upheld the action for protection against dismissal.

The decision

The Hamm Regional Labor Court amended the first-instance judgment and dismissed the action. In the opinion of the court, the termination is valid.

First, the Hamm Regional Labor Court found that the works council hearing had been conducted properly. The defendant had initiated the hearing procedure together with the consultation procedure and the negotiations on the reconciliation of interests, and had provided the works council with a draft reconciliation of interests, a draft social plan, and a list of personnel. These documents set out the reasons for the dismissals and the employees affected by the dismissals, including their social data. Since social selection was not necessary due to the closure of the business, the defendant did not have to provide the works council with all social data.

With regard to the consultation procedure, the court stated that the obviously incorrect figure of 61 employees to be laid off did not prevent the procedure from being carried out properly if the works council was able to recognize the error. The number stated significantly exceeded the total number of employees working for the insolvent debtor and was therefore obviously inaccurate for the works council. The works council was able to determine the actual number of employees to be laid off from the attached table and the list of personnel.

Even if one were to regard the contradictory information as a significant lack of information, this would have been remedied, in the opinion of the Hamm Regional Labor Court, by the works council's final statement in the reconciliation of interests. In this statement, the works council confirmed that it had been provided with the relevant information and declared the consultation process to be concluded. If incorrect or contradictory information has no impact on the works council's decision-making process and is obvious to the works council, a lack of information can be remedied by a final statement from the works council.

The Hamm Regional Labor Court also considered the mass dismissal notification to be valid, even though the defendant had stated a slightly too high number of 34 employees. The court emphasized that not every violation, even a minor one, must result in the invalidity of all dismissals if it has no impact on the activities of the employment agency. Stating a slightly too high number of employees to be dismissed does not invalidate the dismissal if this did not prevent the Employment Agency from finding solutions to the problems raised by the intended mass dismissal.

Practical Information

The decision of the Hamm Regional Labor Court gives employers and insolvency administrators a certain degree of legal certainty when carrying out mass redundancies. Obvious errors in the figures provided in the consultation letter do not automatically render the redundancies invalid if the works council was able to recognize the error and the correct information was apparent from the other documents.

Nevertheless, the utmost care must still be taken when drafting the consultation letter and the mass layoff notification. On the one hand, the decision is not yet final, and the Hamm Regional Labor Court has allowed an appeal due to the fundamental importance of the case. It therefore remains to be seen how the Federal Labor Court (BAG) will assess these issues. On the other hand, it remains unclear which errors in the consultation procedure and in the mass layoff notification are considered "minor."