Works council membership: Not so secret?

 The established case-law that an employee’s membership of a works council cannot be mentioned in a reference given on termination of employment may be open to challenge.  The Higher Labour Court (Landesarbeitsgericht, LAG) Cologne ruled on December 6, 2012 (docket number – 7 Sa 583/12) that under certain circumstances, there is an exception to the established rule.  An employee who had been released completely from work due to work council duties (Freistellung) for a substantial part of his employment – in this case 5 out of 12 years – could not insist that mention of his works council membership be omitted from the reference letter given on termination of his employment.  To do otherwise would result in a false reference which would either: – suggest that the employee had worked in his profession for the whole length of his employment and had gained more experience than was actually the case; – or, leave an unexplained gap in employment.  Neither option would serve the interest of the former or future employer, or employee. It remains to be seen if the Federal Labour Court (Bundesarbeitsgericht, BAG) will allow the decision to stand under the appeal placed by the employee.