Federal Labour Court ruling on digital application documents in the context of the information procedure

At a glance

• The BAG ruled that the provision of application documents to the works council as part of the approval and information procedure (Section 99 et seqq. Works Constitution Act (Betriebsverfassungsgesetz) (BetrVG)) may also take place in digital form.
• The BAG provides clear guidance on the conditions under which the employer may inform the works council by means of digital documents in accordance with Section 99 (1) BetrVG: The works council must be granted the right to inspect and read the digital application documents. It must be able to access the digital documents at any time for the duration of the statutory decision period on the application for consent; in this case, this was made possible through laptops.

Background

The company wanted to hire someone and started the necessary approval process with the works council, as required by the BetrVG (Section 99 and following). As part of this process, the company had to give the necessary application documents to the works council. In this case, the company gave the works council the documents in a digital format.

The works council took the position that it had not been properly informed in accordance with Section 99 (1) sentence 1 BetrVG, as the application documents were only made available in digital form, not paper form. However, the BAG supported the employer's request for approval. The BAG said the employer met the information requirements by giving the works council access to the digital documents, which they could read and inspect anytime during the approval process using laptops.

Takeaways for employers

The BAG's decision is to be welcomed. It gives clear instructions on how a company can inform the works council using digital documents as per Section 99 (1) of the BetrVG. The works council must be allowed to inspect and read the digital application documents. They should be able to access these digital documents anytime during the legal decision period for the approval request. In this case, this was made possible through laptops.