New Works Council Consultation When Repeating a Notice of Termination That Was Not Received?

Regional Labour Court (LAG) of Baden-Württemberg, judgment of 10 June 2026 – 19 Sa 6/26

In its judgment of 10 June 2026 (case no. 19 Sa 6/26), the Regional Labour Court of Baden-Württemberg held that where a notice of termination was not received and a new notice of termination based on the same facts is subsequently issued in close temporal proximity, no new consultation of the works council pursuant to Section 102(1) of the Works Constitution Act (BetrVG) is required. The court further clarified that the right, acquired through proper consultation, to issue the intended termination does not presuppose the works council’s unconditional consent.

A. Facts

The defendant provides security services. The plaintiff had been employed since 17 March 2025 and was still within the qualifying period when the termination was issued.

On 12 May 2025, the defendant consulted the works council established at the establishment by email regarding an intended ordinary termination of the plaintiff. As the reason for termination, it stated that continuing the employment relationship was not in its interest. The notice period was seven calendar days, and termination was intended for the earliest possible date. The works council allowed the one-week period under Section 102(2) sentence 1 BetrVG to lapse.

The defendant then sent a letter of termination by courier on 24 May 2025. Two delivery attempts failed. The letter of termination was not received by the plaintiff. From 25 May to 4 June 2025, the plaintiff was in inpatient treatment, of which he informed his supervisor by email on 28 May 2025. The defendant then prepared a new letter of termination on 4 June 2025, terminating the employment relationship with effect as of 12 June 2025, alternatively as of the next permissible date. This letter was handed to the plaintiff in person on 10 June 2025.

The plaintiff filed an action for protection against unfair dismissal and objected, among other things, to the lack of a new works council consultation. The Labour Court of Mannheim (judgment of 19 February 2026 – 1 Ca 148/25) granted the action and held the termination invalid for lack of a new works council consultation pursuant to Section 102(1) sentence 3 BetrVG.

B. The Decision of the Regional Labour Court

The Regional Labour Court of Baden-Württemberg largely reversed the first-instance judgment and declared the termination valid. However, the employment relationship did not end on 12 June 2025 but only on 17 June 2025, since the seven-day notice period (Section 2 No. 3.1 of the Framework Collective Agreement (MRTV) for Security Services) was to be calculated only from receipt on 10 June 2025.

1. No new works council consultation required

The Regional Labour Court then found that the proper works council consultation of 12 May 2025 was also sufficient for the termination of 4 June 2025 received on 10 June 2025. In its judgment, the court took the view that the consultation of the works council under Section 102 BetrVG takes effect for the termination for which it was initiated. The employer must therefore, in principle, conduct a consultation procedure for each termination (Federal Labour Court (BAG), 10 November 2005 – 2 AZR 623/04). A new consultation is always required where a first termination has been received by the employee and the employer has thereby implemented its intention to terminate. The right to alter the legal relationship (Gestaltungsrecht) and the related works council consultation are exhausted upon receipt of the notice of termination.

In the case at hand, however, the plaintiff had neither actually received the first letter of termination sent by courier, nor had it entered his sphere of control (Section 130(1) sentence 1 of the German Civil Code (BGB)). The termination process had therefore not been completed, the decision to terminate had not been implemented, and no effective termination had come into existence. The second letter of termination therefore did not constitute a second termination, but rather the first implementation of the decision to terminate taken after completion of the consultation procedure.

2. Departure from Federal Labour Court case law: no unconditional consent required

On one key point, the Regional Labour Court expressly departed from the established case law of the Federal Labour Court. In several decisions, the Federal Labour Court had required, as an additional condition for dispensing with a new consultation, the works council’s unconditional consent to the termination (BAG, 11 October 1989 – 2 AZR 88/89; 16 September 1993 – 2 AZR 267/93; 7 May 1998 – 2 AZR 285/97; 10 November 2005 – 2 AZR 623/04).

The 19th Chamber of the Regional Labour Court did not follow this approach. The right to issue the termination acquired through proper consultation does not presuppose the works council’s unconditional consent. Rather, the works council’s rights are safeguarded by a properly initiated and completed consultation procedure, as this gives the works council the opportunity to influence the employer’s decision to terminate (cf. BAG, 11 October 1989 – 2 AZR 88/89; 25 May 2016 – 2 AZR 345/15). The employer is not obliged to do more. Unconditional consent – like consent deemed given under Section 102(2) sentence 2 BetrVG – can therefore play no role in safeguarding the works council’s rights.

C. Practical Note

The decision is significant for employment law practice in several respects:

First, the Regional Labour Court confirms the principle that a works council consultation is not exhausted where a termination has not been received. If delivery of a notice of termination fails, the employer does not have to consult the works council again, provided that the new termination is based on the same facts and is closely related in time to the first delivery attempt. Following a failed delivery, employers should therefore promptly make a new delivery attempt and document the connection between the consultation and the renewed attempt to terminate.

Second, the Regional Labour Court takes a position against the requirement, as previously formulated by the Federal Labour Court, of the works council’s unconditional consent as a precondition for dispensing with a new consultation. An appeal on points of law (Revision) was expressly admitted on this question (Section 72(2) No. 2 of the Labour Courts Act (ArbGG)). Employers should closely monitor further developments in case law. Until the matter is clarified by the highest court, it is advisable, as a precaution, to consult the works council again when repeating a termination after failed delivery where no unconditional consent was given.