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In the previous newsletter we explained that works council members are protected from being disadvantaged. This does not entail that a works council member cannot be excluded from the Works Council.

Exclusion by Court

Expelling a member from the works council is not possible under the Works Council Act (WOR) by the works council or company itself. However, a member can be excluded from acting as works council member by the court (section 13 of the WOR). The court can do so at the request of the works council, at the request of the director or a request by the works council and director jointly. Before submitting a request, the member concerned will have to be heard. The company will also have to be informed.

Serious impediment

The court may proceed to exclude the member from all or certain activities of the works council and for a period to be determined by the court. However, a request for exclusion will only be granted if the member seriously interferes with the works council’s work. There is a fairly high threshold; courts are generally quite reluctant to grant the request. Case law shows that serious impediment is particularly when a combination of factors are involved. Think, for example, of a deliberate (repeated) breach of the confidentiality obligation combined with questioning the integrity of the other members or otherwise seriously impeding the works council’s work. Also is of importance whether previous warnings have been given and whether there has been a final warning. However, if the facts and circumstances are very serious, previous warnings can sometimes be omitted. In any case, that a member often has a different opinion or is hard to work with are insufficient grounds for exclusion.

When a member is expelled by the court that person remains a member of the works council and therefore there is no interim vacancy for the works council.

Provisonal injunction

As an exclusion procedure takes time, the works council can request temporary suspension of the member in summary proceedings. Be aware that the works council may be ordered to pay the legal costs in the event of a dispute with an individual member. In that context, it may be a consideration to join forces with the director and agree on payment of the legal costs in the event the court indeed orders payment of these costs.

In conclusion

In general, it is preferable to try to normalise relations by discussing the situation with the works council member or to try to reach an agreement with the member in question in joint consultation on resigning from the works council or (temporarily) not performing any activitiesden.