Employment Law

Works council elections 2026 – Current case law on postal voting

Is there anything new to consider when pre­paring for the up­co­ming works council elections?

Despite developments in recent years, including the Works Council Modernisation Act and the resulting amendments to the Works Constitu­tion Act in 2021, such as the lowering of the voting age to 16, extended protection against dismissal for initiators of works council elections and, in some cases, modernisation of day-to-day works council work by enabling at least virtual mee­tings, unfortunately much remains un­changed, particularly with regard to works council elec­tions. In particular, the latest decisions of the Federal Labour Court (BAG) in connec­tion with postal voting, among other things, illustrate the strictness of the legal requirements.

Postal voting remains an exception to vo­ting at the ballot box

General information on postal voting

Works council elections are held by secret and direct ballot in accordance with the provisions of the Works Constitution Act (BetrVG) and the Election Regulations (WO). Even in times of wide­spread use of home offices, in accordance with Sections 12 and 24 WO, ballot box voting, i.e. voting in a designated polling station at the company, remains the standard procedure, with postal voting only being an alternative exception. Digital voting is not yet permitted by law. However, the conduct of postal voting alone requires election committees to have compre­hen­sive knowledge of the election regulations and the relevant case law. If errors occur in this pro­cess, they may constitute grounds for contesting the works council election, or even, in extreme individual cases, for declaring it null and void.

By Sabine Fabig