Special protection against dismissal for pre-election initiators is an important safeguard for employees preparing a works council election. Yet as the ruling 2 AZR 70/25 shows, this protection can be forfeited quickly if not asserted in time. The Federal Labor Court (BAG) has clarified with this decision that employees must take active steps to invoke the special dismissal protection — otherwise they risk losing it.
In the underlying case, an employee with equal status to a severely disabled person had prepared a works council election but did not inform the employer. After receiving the dismissal notice, she filed a dismissal protection lawsuit on time, but did not assert the special protection as a pre-election initiator against the employer within three weeks. The BAG ruled that her protection was therefore forfeited.
What Is Pre-Election Initiator Dismissal Protection? (Section 15(3b) KSchG)
Special protection against dismissal for pre-election initiators is governed by Section 15(3b) of the Protection Against Dismissal Act (KSchG). It protects employees who prepare a works council election from ordinary dismissals. The legislator aims to prevent employees who campaign for the establishment of a works council from being disadvantaged. Without this protection, an employer could simply dismiss inconvenient employees before they can initiate an election.
However, the protection does not apply automatically. It requires that the employee has actually taken preparatory steps for a works council election. These include inviting colleagues to an election assembly, collecting signatures, or contacting coworkers. The key point is that these actions must be externally recognizable and the employer must become aware of them, or the employee must assert the protection.
Pre-election initiator dismissal protection applies only to ordinary dismissals. Extraordinary dismissals remain possible if there is good cause. A change-of-conditions dismissal may also be permissible under certain circumstances.
The Case: Employee with Equal Status to a Severely Disabled Person and Her Dismissal
In the specific case, the plaintiff had worked as an education consultant since 1993. With a degree of disability of 30, she had equal status to a severely disabled person. In 2021, she received two warnings for unauthorized behavior and failure to follow instructions. Such warnings are often the prelude to a later dismissal — anyone with a warning in their personnel file should have its content and justification reviewed carefully. In May 2022, the employer applied to the Integration Office for consent to an ordinary dismissal. After a personnel meeting where a termination agreement was also offered, the plaintiff began researching the establishment of a works council.
She contacted a lawyer who explained the requirements for a works council election and the special dismissal protection. On August 31, 2022, she submitted a notarized declaration of intent stating her intention to establish a works council. In a letter to a colleague dated September 1, 2022, she expressed the wish to discuss readiness for a prompt election. The employer learned nothing of these activities.
The Integration Office consented to the dismissal on September 28, 2022. On September 30, 2022, the employer declared the ordinary dismissal effective March 31, 2023. The plaintiff filed a dismissal protection lawsuit on time, but in the statement of claim only referred “as a precaution” to Section 15 KSchG without specifically asserting pre-election initiator dismissal protection against the employer.
Why the Protection Was Forfeited: The Three-Week Deadline and the Employer’s Lack of Knowledge
The Federal Labor Court made clear that pre-election initiator dismissal protection is forfeited if the employer had no knowledge of the preparatory actions and the employee does not assert the protection against the employer within three weeks of receiving the dismissal notice. This deadline aligns with the deadline for the dismissal protection lawsuit under Section 4 KSchG. Similar to contractual exclusion periods in employment contracts, the rule applies: anyone who misses a deadline loses their rights.
In the present case, the plaintiff had not informed the employer of her intention to establish a works council. Even after receiving the dismissal notice, she did not communicate this. Instead, she merely mentioned the special dismissal protection in the statement of claim. According to the BAG, this is insufficient to retain the protection.
Forfeiture occurs because the employer deserves protection: the employer must be able to assess whether a dismissal is permissible. If the employee does not assert the special protection, the employer may assume it does not exist. The three-week deadline serves to ensure legal certainty.
What Employees Preparing a Works Council Election Must Absolutely Observe
Anyone preparing a works council election should inform the employer of their activities early on. This can be done in writing or orally but should be documented. Only then is it ensured that pre-election initiator dismissal protection applies.
In addition, it is important to document all preparatory actions. These include invitations, minutes of assemblies, emails to colleagues, or notarized declarations. These documents can serve as evidence in a dispute.
Employees should also be aware that special dismissal protection does not arise automatically from a declaration of intent. What matters is that concrete steps toward the election are taken. A mere intention is not enough.
Practical Steps: How to Assert Pre-Election Initiator Dismissal Protection in Time
If you receive a dismissal notice and wish to invoke pre-election initiator dismissal protection, you should declare in writing to the employer within three weeks of receiving the notice that you are preparing a works council election. This declaration should be sent by registered mail to prove receipt.
Additionally, you must file a dismissal protection lawsuit with the labor court within the same deadline. The lawsuit is only admissible if received within three weeks of the dismissal notice. Missing this deadline leads to loss of dismissal protection. Anyone unsure about the procedure will find a comprehensive overview of deadlines, process, and costs in our guide to dismissal protection lawsuits.
It is advisable to engage a specialist lawyer for employment law who keeps both deadlines in view. RechtStark as a litigation funder can cover the costs of such proceedings once the prospects of success have been assessed. This way, you do not have to bear the financial risk alone.
Difference from the General Dismissal Protection Lawsuit: Two Separate Deadlines
Many employees confuse the deadline for the dismissal protection lawsuit with the deadline for asserting special dismissal protection. These are two separate actions: the lawsuit must be filed with the labor court, while assertion of pre-election initiator dismissal protection must be made against the employer. Both deadlines are usually three weeks and run in parallel.
If only the lawsuit is filed but the special protection is not asserted against the employer, the protection can be forfeited. The present case illustrates this clearly. The plaintiff met the lawsuit deadline but missed the assertion deadline.
It is therefore advisable to complete both steps promptly and ideally on the same day. This minimizes the risk of missing a deadline. Even if you have already received a dismissal notice, you should inform yourself about the exact requirements — for example, in our article on inadmissible appeals, which shows how important compliance with deadlines is in employment law proceedings.
Conclusion: What the Ruling Means for Employees in Small Businesses
The ruling 2 AZR 70/25 has significant implications for employees in small businesses where no works council exists. Anyone who initiates a works council election there enjoys pre-election initiator dismissal protection but must actively assert it. Otherwise, the protection lapses.
The decision creates clarity but also serves as a warning: employees must be aware of their responsibility and demand the protection in time. In case of doubt, you should seek legal advice early and keep all deadlines in view. RechtStark supports you by financing the costs of a dismissal protection lawsuit if you need it.
If you want to learn more about the general dismissal protection procedure, read our guide to dismissal protection lawsuits. There you will find all important information on deadlines, process, and costs.
Note: This article is for general information purposes only and does not replace individual legal advice. For a free initial assessment of whether litigation funding may be an option for your case, you can contact RechtStark.