The  Hessian State Labor Court In its judgment of July 09.07.2025, 16 (case no. 401 Ta 25/XNUMX), the Federal Court of Justice (BGH) issued an interesting ruling regarding the correct procedure for the removal of a works council member by way of a warning letter. If the warning alleges a breach of contractual obligations, the judgment procedure is the correct procedure. This is because it then concerns a claim arising from the employment relationship (cf. Section 2 paragraph 1 no. 3a ArbGG). 

1. FACTS

The parties are disputing the proper procedure. The employer and respondent employs the applicant, who is also a works council member, in one of its furniture stores. In August 2024, the applicant received a warning for insulting behavior. This violates the employer's code of conduct.  

The applicant subsequently requested that the warning be removed from his personnel file through a resolution procedure. The employer challenged the admissibility of the resolution procedure. For the case of removing the warning, the judgment procedure was applicable pursuant to Section 2 paragraph 1 no. 3a ArbGG the right type of procedure. 

The labor court declared the decision-making process inadmissible and transferred the lawsuit to a judgment. The Hessian State Labor Court dismissed the applicant's immediate appeal against this decision. 

2. DECISION

According to the Hessian State Labor Court, the judgment procedure is the correct method of procedure. Section 2 paragraph 1 no. 3a ArbGG It depends on whether the claim is based on the employment relationship. This applies to lawsuits seeking the removal of a warning letter, provided it contains an allegation of a breach of contract (cf. Federal Labor Court, judgment of December 03.12.2020, 7, Ref. No. 57 AZB, 20/XNUMX).

This assessment is not changed by the fact that the applicant also refers in his application to § 78 BetrVG and the prohibition of discrimination contained therein. The collective legal claim that may exist in addition to the individual legal claims is Section 2 paragraph 1 no. 3a ArbGG included. 

3. CONCLUSION 

The motivation behind the applicant's approach is clear. In a resolution procedure, the employer pays for everything. Therefore, in this case, it was desirable for the applicant to obtain a decision through resolution proceedings. Employers should always carefully consider whether resolution proceedings are actually the appropriate method for disputes involving (also) works council members.