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No general obligation on employers to disclose warning letters to the works council

There is no general obligation on an employer to provide the works council with issued or planned warning letters, whether in original or anonymized form, according to the Federal Labour Court (Bundesarbeitsgericht, BAG – docket number: 1 ABR 26/12).

An employer is only obliged to provide the works council with information and documents necessary to fulfill its tasks. The Federal Labour Court explicitly made clear that the works council has no general information and/or co-determination rights with respect to individual warning letters.  An employer would only be under an obligation to disclose warning letters in rare cases where such letters trigger co-determination rights regulated by law, or in a situation where the works council has to be informed prior to an individual dismissal based on the employee’s misconduct and warning letters have been issued before the intended dismissal.