Termination of a Works Council Election Due to a Deliberately Erroneous Staffing Forecast and Violation of the Duty of Trustful Cooperation

LAG Niedersachsen, Beschluss vom 27. Mai 2026 – 8 TaBVGa 36/26

The works council election is a central instrument of workplace co-determination. The election committee is tasked with properly preparing and conducting the election – including determining the size of the works council to be elected. But what happens when the election committee deliberately and without any factual basis inflates the number of regularly employed workers far beyond the actual figure in order to create an oversized body? In a recent decision, the Lower Saxony Regional Labor Court (Landesarbeitsgericht, LAG) made clear: such an election is not merely voidable – it is null and void and must be terminated.

Facts of the Case

Two companies jointly operate a staffing services business as a joint establishment (Gemeinschaftsbetrieb) with approximately 357 employees across Germany. Due to the economically difficult situation at their principal client, a major automotive group, extensive workforce reductions had already been carried out in early 2025, which were agreed upon and implemented under a reconciliation of interests (Interessenausgleich).

The works council, whose term of office was due to expire on May 31, 2026, appointed an election committee for the works council elections. The election committee initially adopted an election notice providing for a nine-member works council. However, this notice was never posted. On the day following this internal resolution, a minority faction of the election committee – without any further resolution or coordination with the remaining members – published an election notice providing for the election of 17 works council members.

The minority faction of the election committee relied on an outdated "key issues paper" (Eckpunktepapier) on staffing plans, according to which at least 1,545 eligible employees were regularly employed in the establishment. In reality, all works council and election committee members involved were fully aware of the current staffing plans and the preceding workforce reductions.

Particularly noteworthy: Three members of the election committee stated in an open letter to the entire core workforce that the assumption of 17 seats was "indefensible" and that no concrete assignments or plans existed that could justify such a number.

The employers thereupon applied for interim injunctive relief (einstweiliger Rechtsschutz) seeking termination of the election. The labor court initially dismissed the applications. While it found that a violation of Section 9 of the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) had occurred, it did not consider the violation sufficiently obvious to establish the nullity of the election. The employers appealed this decision to the LAG Niedersachsen.

Decision

The appeal was successful. The LAG did not share the labor court’s assessment: it upheld the appeal and ordered the termination of the works council election.

The court affirmed the established case law that the nullity of a works council election can be assumed only in exceptional circumstances. A particularly gross and obvious violation of fundamental principles of electoral law must be present, such that not even the appearance of an election conforming to the law remains.

In the present case, the court concluded that the erroneous assumption of 17 works council members to be elected was made intentionally. The forecast of "at least 1,545 employees" lacked any factual basis whatsoever. Only approximately 360 employees were actually working in the establishment, and no expansion was foreseeable. The underlying key issues paper was substantively outdated, a fact known to the election committee.

The LAG inferred from the overall circumstances of the case that a faction of the election committee had deliberately relied on the outdated staffing plan in order to establish a larger works council pending a potential new election. The works council and election committee had knowingly accepted the voidability of the election and sought to rely on the "normative force of the factual" (die normative Kraft des Faktischen), thereby installing a significantly excessive number of employees in works council positions.

Such conduct constitutes an abusive exercise of a formal legal position in violation of the principle of trustful cooperation (Section 2(1) BetrVG) and need not be tolerated by the employer. The principle of trustful cooperation sets the standard for how the parties to the establishment must exercise their mutual rights and obligations. They must also take into account the interests of the other party. Ultimately, this concerns the application of the principles of good faith (Treu und Glauben) within the framework of the works constitution. This duty expressly applies to the election committee as well.

Practical Guidance

The termination of a works council election is ordered only in rare cases. However, the present decision demonstrates that, particularly in cases of serious breaches of duty by the works council or the election committee, it can certainly be worthwhile to seek interim injunctive relief. The decision of the Lower Saxony Higher Labor Court (LAG Niedersachsen) provides interesting guidance on when and under what circumstances violations of statutory election rules carry such weight that the termination of a works council election can be successfully petitioned for.