Works council election 2026: Elect employee representatives by postal vote?

Selecting the right election procedure 

In businesses with up to 100 employees eligible to vote, Art. 14a of the German Works Constitution Act (“BetrVG”) mandatorily requires the simplified election procedure. The deadlines are shorter than in the “normal” procedure, and a majority vote or personal election is held. There are not several lists to choose from. However, a gender quota must be observed in this procedure as well. The gender that is in the minority in the workforce must be represented in the works council in proportion to the number of male/female employees. 

If a business has between 101 and 200 employees eligible to vote, the election committee and the employer can agree to use the simplified procedure. Under no circumstances can this be agreed between the works council and the employer. The number of eligible voters should also be carefully determined in order to avoid any procedural errors that could make the election contestable. 

For 200 or more eligible voters, the normal election procedure is mandatory. No deviating agreements are permitted. The election is conducted according to the principle of proportional representation (voting by list). 

Requirements for postal voting 

In accordance with the provisions of the Works Constitution Act and the Election Regulations (WO), the works council election is held by secret and direct ballot. The election is held in the designated polling station at the company, which is the rule according to Art. 12 WO. However, the Election Regulations also provide for postal voting in certain cases (Art. 24 WO). This is possible if 

• the eligible voter concerned requests that the postal voting documents be sent to them and
• the eligible voter is unable to be present at the company at the time of the election. 

If the employee does not request postal voting documents themselves, they can only be sent to them by the election committee if the election committee is aware that 

• due to the nature of their employment (field service, home office) or 
• for other reasons, in particular in the event of suspension of employment or incapacity to work between the date of the election announcement and the election date 

the eligible voter/employee is not expected to be present at the company. 

In addition, pursuant to Art. 24 (3) WO, the election committee may determine that written ballots shall be cast for divisions of the company or small businesses that are located far away from the main company premises. 

If the election committee itself decides to send postal voting documents to employees, this decision should be carefully considered on the basis of the criteria set out in Art. 24 (2) WO. The conditions for postal voting must not be extended arbitrarily by the election committee for reasons of practicability. Otherwise, the arbitrary sending of postal voting documents may constitute grounds for contesting the election. 

Practical example 1: Postal voting during short-time work 

On October 23, 2024, the German Federal Labor Court (BAG) ruled (case 7 ABR 34/23) that the election committee may generally send election documents to eligible voters who are known to be on short-time work in accordance with Art. 24 (2) No. 1 WO. It does not have to verify in each individual case whether the employee on short-time work is actually absent on election day. However, if it is aware, through its own investigations, that certain employees are performing their work despite being on short-time work, these employees may not cast a written vote. Without a corresponding request, these employees may not be sent postal voting documents. Sending postal voting documents to all employees affected by short-time work without exception may therefore be incorrect. 

The strict requirements of Art. 24 WO are intended to prevent postal voting from achieving a high voter turnout at the expense of a secure and secret election. In this context, the BAG did not object to the election committee sending the documents to all employees who worked from home. 

Practical example 2: Postal voting in a company with branches 

On January 22, 2025 (7 ABR 23/23), the German Federal Labor Court ruled that it is inadmissible to decide on general postal voting for all employees. The election committee of a food discounter with 400 stores in the works council district held the opinion that, due to the distance between the individual stores, it was permissible and, above all, practicable to order postal voting for the entire company. This was based on Art. 24 (3) WO. However, this provision requires a main establishment where written votes must be cast. If there is no such main establishment, Art. 24 (3) WO cannot be applied analogously; instead, written voting must be made possible in a polling station in each branch. 

According to current legislation and case law, postal voting remains the exception in works council elections. 

Conclusion: Prepare the election carefully and strictly adhere to the election procedures 

The election procedure is strictly formalistic. For reasons of practicality or in order to achieve a high voter turnout, the provisions of the Works Constitution Act and the Election Regulations must not be interpreted generously in accordance with one's own interests. 

It is advisable to carefully compile and check the electoral rolls to avoid the risk of applying the wrong voting procedure or incorrectly assuming that the requirements for postal voting have been met. This leads to errors and thus to the election being contested.