Digital change processes and sustainable future concepts - what points do employers have to pay attention to regarding co-determination?

The topic of sustainability is increasingly occupying the world of work, with qualification and vocational training measures also continuously gaining in relevance. The rapid advancement of digitization as a result of the corona pandemic in particular is requiring employers to come up with sustainable concepts for qualification and vocational training measures for their employees in order to ensure their sustainability. The purpose of these measures is to adapt employees’ know-how to the (digital) transformation, so that they can keep up with the constantly increasing requirements.

However, caution is required here from the employment law perspective: in particular, the participation rights of any works council bodies must be observed.

Of relevance insofar is § 97 German Shop Constitution Act [Betriebsverfassungsgesetz, “BetrVG”]. This gives works councils a comprehensive right of consultation when qualification and vocational training measures are to be introduced for employees. This right of participation even becomes a genuine right of co-determination pursuant to § 97 (2) BetrVG if employers have planned and implemented measures which lead to a change in the employment activities for which precisely these employees can no longer demonstrate sufficient knowledge and skills, but which are still necessary to carry out their (new) tasks. If in-house vocational training is now to be introduced for this very group of employees, then this can only be carried out with the consent of the competent works council. Employers therefore need to consult with their works councils in order to reach agreement on planned qualification and vocational training measures. If no agreement can be reached, this even requires an arbitration board to decide on the qualification and vocational training measures.

In business practice, such changes often go hand in hand with a change in the business, if a change in work processes is so extensive that it involves a change in the business organisation and possibly the introduction of fundamentally new working methods and production processes. The significance of the German Shop Constitution Act, more precisely § 111 sentence 3 Nos. 4 and 5 BetrVG, which grants the works council extensive participation rights, is in turn noteworthy with respect to such sustainability concepts.

A frequently encountered catchphrase in the field of sustainability is also the so-called "qualifications social plan". In practice, the question often arises whether qualification social plans as opposed to severance pay social plans come into consideration by the works council pursuant to § 112 (1) sentence 2, (4) BetrVG. The great advantage promised by such qualification social plans is that they not only contain social plan regulations regarding the departure of employees from the company, but also regarding the qualification of employees. In the best case scenario this means that jobs can be maintained in a modified form, which in turn fulfils a facet of sustainability.

Our experts Isabel Hexel and Cornelia-Cristina Scupra are happy to answer any further questions you may have.

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