On sick leave, but still in office: When works council members may take part despite being unfit for work

A works council member has been on sick leave for more than three years and still wants to attend council meetings. The works council keeps inviting the substitute member instead. The Hesse Regional Labour Court (LAG Hessen) decided in interim proceedings that this was wrong (decision of 2 February 2026, case no. 16 TaBVGa 2/26). A sick note only says that someone cannot perform their contractual work. Whether they can carry out their works council duties is a different question. More depends on the answer than an internal dispute within the council: it can determine whether works council resolutions are valid at all.

1. The case: Three years on sick leave, but fit for the mandate

The works council member works as an aircraft refueller, a physically demanding job. Due to orthopaedic problems, the member had been continuously unfit for work for more than three years. At some point, the member contacted the works council chair: their health still did not permit working on aircraft, but it did permit attending meetings, holding discussions and voting in the works council. The member demanded to be invited to the meetings again.

The works council chair refused and continued to treat the member as unavailable. The member challenged this in interim court proceedings.

2. The decision: A rebuttable presumption

Under section 25(1) of the German Works Constitution Act (BetrVG), a substitute member steps in when a works council member is temporarily prevented from performing their duties. Where a member is on sick leave, the chair may initially assume such unavailability; there is a factual presumption to that effect.

The LAG Hessen clarified, however, that this presumption can be rebutted. Particularly in physically demanding jobs, someone may be unable to do their job and still perfectly able to take part in a meeting in a conference room. What matters are the nature of the illness and the demands of the specific job.

An exception applies to works council members who are fully released from their work duties under section 38 BetrVG: their only "work" is the council mandate. A member on sick leave in that situation is generally also unable to hold office (as the Federal Labour Court already held, decision of 28 July 2020, case no. 1 ABR 5/19).

3. The key point: The ball is in the works council member's court

From the outside, the chair cannot tell whether a member on sick leave is fit to hold office. The ball is therefore in the court of the member concerned: they must expressly notify the chair that they can and want to continue performing their duties. Only this notification removes the presumption of unavailability. Until then, the chair may invite the substitute member.

4. Why employers should pay close attention

At first glance, the LAG Hessen decision reads like a purely internal works council matter. It becomes commercially significant on the employer side: if the wrong member takes part in a works council meeting, the body is improperly constituted - and resolutions on works agreements, a reconciliation of interests or a social plan may stand on shaky ground.

Unsure about the correct composition of your works council?

Whether a works council member on sick leave may take part is decided case by case. If this exact question is on the table in your works council or your company, I offer you a short, free initial assessment. In that call, we clarify how your situation is to be assessed and which next steps make sense.