Member Article

Regional Court of Nuremberg, decision of June 18, 2020 - 1 TaBV 33/19

The Regional Labor Court (Landesarbeitsgericht - LAG) of Nuremberg had to rule on a motion by a works council, in which the latter demanded that the discussions held with it be conducted only in German. At the same time, it demanded that all communication between the branch management and the employees be conducted in German. The Regional Court rejected both motions of the works council.

For a German branch with about 64 employees, a Spanish fashion company had appointed a branch manager who hardly spoke any German. For this reason, the branch manager conducted employee interviews, staff meetings and discussions with the works council in English. However, the conversations were always translated, if desired.

COMMUNICATION WITH THE WORKS COUNCIL

The work council has asserted a claim for injunction because of an offence against the co-determination right pursuant to s 87 (1) No. 1 German Works Constitution Act (BetrVG, rules of operation of the establishment). However, a claim on this basis does not exist, if for no other reason than the fact that communication with the work council does not fall under the rules of operation of the establishment.

Contrary to the view of the works council, communication in English is also not an obstruction of the works council. The court explained that it is crucial how the works council receives the communication. In the disputed case, texts were previously translated into the German language. Face-to-face conversations were translated by those present into German or into English for the branch manager. This was not objectionable, since the risk of a wrong translation was at the expense of the employer.

The somewhat cumbersome communication between the works council and the branch manager due to the necessary translation was not to be regarded as obstruction of the work of the works council either. If the branch manager did not have the power to make her own decisions and had to check with the company management every time, the communication would be similar. In such a constellation the exchange with the work council would also be more difficult, without it being an obstruction of the work of the work council.

COMMUNICATION WITH EMPLOYEES

The works council cannot demand that the employer refrain from holding employee meetings in a language other than German. The co-determination right pursuant to s 87 (1) No. 1 BetrVG was not violated. On the contrary, the employer had issued no general guidelines for the employees regarding the use of a certain language; neither was there a factual compulsion to use English. At the employee meetings, statements made by the branch manager were translated for the employees and contributions made by employees were translated for the branch manager.

According to the court, a constellation is to be assessed differently, for example, if circulars are sent to employees only in English, thereby making it clear that knowledge of the English language is a prerequisite for employees. However, this was not the case here.

Even in one-to-one meetings with employees, the works council cannot demand that communication must only be in German. To begin with, the motion was formulated too broadly, since in the quite understandable view of the court, an employee might not be proficient in German or might not mind communicating in English. It made no sense to oblige the branch management and the employees to speak only in German during the meeting. Here, too, translation had been possible if necessary.

Especially for international companies sending their executives for secondments to Germany, it is important to know that there is no obligation to use the German language in the establishment. However, the employer must ensure that its statements, e.g. by the branch manager, are translated if necessary or desired. The employer bears the risk of a misunderstanding due to a missing or incorrect translation.