Arbeitsrecht: Kündigung in Probezeit: Betriebsrat muss einbezogen werden

In Germany, the works council of a company must be involved when employees are being dismissed during their probation period, according to Volker Görzel, a labor lawyer with the German Association of Labor Lawyers (VDAA). Although employers generally do not need specific reasons to terminate an employee during the first six months of employment, they must still consult with the works council and explain the reasoning behind the decision if they do not hold one. If the employer fails to do so, the dismissal will be deemed ineffective.

The works council should be provided with a concise explanation of the factors considered in the decision, such as the probationary period, rather than simply using terms like "provisional dismissal" or "failure to complete the probation period." The level of detail required in the justification for the dismissal varies and is not universally applicable.

However, if the employee did not meet expectations during their probation period, the employer may only need to provide a relatively minimal amount of information. On the other hand, if the dismissal is based on a specific circumstance, such as repeated unauthorized absences, the employer must detail these incidents to the works council.

If the employee's performance has not proven satisfactory, this alone is insufficient justification for dismissal.

Görzel emphasizes that the works council consultation should accurately reflect the actual decision-making process and not omit any relevant incidents that influenced the decision. Concealing such incidents could result in an invalid works council consultation, leading to the dismissal being ineffective. The fact that an employee is still in their probation period does not reduce the importance of involving the works council; it remains a crucial step in the process.