Case law · Staff measures
Individual staff measures §§ 99–100 BetrVG
Hiring, grading, regrading and transfer – the works council's involvement, refusal of consent and provisional measures. With one important difference: here the route usually runs via the labour court, not the conciliation committee.
As of 10 July 2026 · Every decision included is checked against the official primary source.
Involvement in individual staff measures (§ 99 BetrVG)
In establishments that normally have more than 20 employees entitled to vote, the works council must be informed before every hiring, grading, regrading and transfer and asked for its consent (§ 99(1) BetrVG). The council may refuse consent only on the grounds exhaustively listed in § 99(2) BetrVG (e.g. breach of statute or collective agreement, disadvantages for other employees).
Consent substitution instead of the committee (§ 99(4) BetrVG)
If the works council refuses consent, it is not the conciliation committee that decides but the labour court, on the employer's application, in the consent-substitution procedure (§ 99(4) BetrVG). This is the key difference from the social matters of § 87: individual staff measures are a case for judicial clarification, not for the conciliation procedure.
Provisional measures (§ 100 BetrVG)
Measures that are urgently required for objective reasons may be carried out provisionally by the employer (§ 100 BetrVG) – it must inform the works council and, if the latter disputes the urgency, apply to the labour court within three days. § 101 BetrVG governs the reversal of unlawful measures.
This page provides neutral information on the legal situation. As chair of a conciliation committee I represent neither side – I guide employer and works council jointly to a balanced, legally sound arrangement.
Decisions
Case law on §§ 99–100 BetrVG
This section is expanded weekly with checked decisions of the BAG and regional labour courts (hiring, grading, transfer, grounds for refusing consent, provisional measures).
BAG · 4th Senate
Assignment to the extra-tariff area is a co-determined grading
Order of 22 October 2025 · Ref. 4 ABR 35/24 · Section 99(1)–(4) BetrVG
Key point: Assigning an employee to the extra-tariff area is also a grading within the meaning of Section 99(1) BetrVG and thus subject to co-determination. Extra-tariff status requires an individually agreed set of terms and a collective minimum gap (here 10% above the highest pay group); only the basic table pay counts for calculating that gap.
Relevance in practice: The works council must be involved even for extra-tariff staff; consent can be substituted by the court under Section 99(4) BetrVG. Errors in notification or in calculating the gap render the measure void.
Source: bundesarbeitsgericht.de →
BAG · 1st Senate
Grading: the employer must tell the works council the pay step
Order of 16 July 2024 · Ref. 1 ABR 25/23 · Sections 99, 101 BetrVG
Key point: Where the company pay scheme has pay groups and steps, the employer must, when asking for consent to a grading, also state the intended pay step of its own accord. Without it the works council is not properly informed (Section 99(1) sent. 1 BetrVG) and the time limit for refusing consent does not begin to run.
Relevance in practice: Incomplete notification means the deemed-consent effect does not occur and the measure stays open to challenge – a common error in grading procedures.
Source: bundesarbeitsgericht.de →
BAG · 1st Senate
Refusal of consent requires a genuine disadvantage (Section 99(2) no. 3)
Order of 20 May 2025 · Ref. 1 ABR 14/24 · Sections 99(2), 95 BetrVG
Key point: A refusal of consent under Section 99(2) no. 3 BetrVG requires a genuine disadvantage to employees already in the establishment. The mere failure to improve the position of an internal applicant is not enough – the provision protects the status quo, it does not require its improvement. Consent to the hiring could therefore be substituted by the court.
Relevance in practice: Sharpens the limits of the refusal grounds – an internal applicant must actually be placed at a disadvantage by the hiring, otherwise the ground does not hold.
Source: bundesarbeitsgericht.de →
BAG · 1st Senate
Transfer in a joint establishment: collective norms only if all undertakings are bound
Order of 25 November 2025 · Ref. 1 ABR 38/24 · Sections 99, 101 BetrVG; Sections 3, 4 TVG
Key point: Collective-agreement norms on works-constitution matters (here on co-determination in transfers) apply in a joint establishment run by several undertakings only if all the undertakings forming it are bound by the collective agreement. Where only a parent company was bound, the norms had no (continuing) effect in the joint establishment.
Relevance in practice: Before relying on collectively extended co-determination rights in a joint establishment, check that every operating undertaking is bound by the agreement.
Source: bundesarbeitsgericht.de →