No special protection against dismissal due to establishment of works council during probationary period

LAG Munich, judgment of August 20, 2025 - 10 SLa 2/25

In its decision of August 20, 2025, the Munich Higher Labor Court (LAG) ruled that the statutory special protection against dismissal for works council initiators does not apply during the six-month waiting period pursuant to Section 1 para. 1 KSchG.

Facts of the case

The plaintiff was employed by the defendant as a security guard. Six days after the start of the employment relationship, he had his intention to establish a works council notarized. After the plaintiff informed the defendant of his intention, the defendant terminated the employment relationship with due notice. The plaintiff then filed an action for protection against dismissal and invoked several grounds for invalidity, including - albeit only six months after the dismissal was announced - the special protection against dismissal for initiators of a works council election pursuant to Section 15 para. 3 lit. b KSchG.

At first instance, the labor court had upheld the action for protection against dismissal and justified this decision with the special protection against dismissal for initiators of a works council election pursuant to Section 15 para. 3 lit. b KSchG.

Reasons for the decision

However, the Munich Higher Labor Court overturned the decision of the court of first instance and dismissed the action. In the opinion of the LAG, the interpretation of the provision shows that the special protection against dismissal pursuant to Section 15 para. 3 lit. b KSchG only applies after the six-month period pursuant to Section 1 para. 1 KSchG has expired.

Furthermore, the court found that the plaintiff had invoked the protection against dismissal as an election initiator too late and had forfeited the special protection against dismissal in this respect. He should have informed the defendant within three weeks of receiving the notice of termination, and in any case no later than three months after submitting the notarized declaration of intent, that the requirements for special protection against dismissal pursuant to Section 15 para. 3 lit. b KSchG were met.

The LAG has allowed an appeal against the judgment. It therefore remains to be seen whether the Federal Labor Court will also decide the case in the same way.

Practical tip

The decision of the Munich Higher Labor Court provides important guidance for the application of the provision of Section 15 para. 3 lit. b KSchG, which was only introduced in 2021 as part of the Company Reorganization Act.

Against the background of this decision, the following applies to the employer. Even the intention of an employee to establish a works council does not preclude the simplified termination options during the probationary period; the special protection against dismissal under Section 15 para. 3 lit. b KSchG only takes effect once the temporal scope of application of the KSchG has been opened.

However, it should be noted that under no circumstances may the dismissal be based on the founding initiative. Pursuant to Section 20 of the Works Constitution Act (BetrVG), the employer may not obstruct a works council election.

If the establishment of a works council is on the cards, it is therefore advisable to seek legal advice in good time.