A vague 'didn't work out' is enough to consult the works council in probation

Germany’s Federal Labour Court confirmed: during probation, employers don’t need to give concrete reasons when consulting the works council before dismissal. A general negative assessment suffices. But a botched repeat dismissal can still protect employees. Case: 2 AZR 191/25.

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Fired during probation

Germany’s Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on 6 May 2026 (case ref.: 2 AZR 191/25): during your probationary period, your employer does not need to explain why you are being dismissed when consulting the works council or staff council beforehand. Saying you „didn’t work out” is legally sufficient. The BAG upheld the judgment of the Hessian Regional Labour Court (Landesarbeitsgericht) of 21 August 2025 (ref.: 3 Sa 1152/23). If you are currently in your probationary period and facing dismissal, this ruling means you have very little room to challenge the dismissal on the grounds that the employee representation was not properly informed.

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Three dismissals, one employer – what actually happened

The Federal Labor Court has not yet issued its reasoning. The lower court had established the following facts:

A software developer started a fixed-term position with a German federal authority in February 2023, hired to build a digital warning system. Within weeks, the employer sent three separate dismissal letters — and the story of those three letters illustrates some important quirks of German employment law.

The first dismissal (5 April 2023) was invalid from the start. In Germany, if someone signs a dismissal letter on behalf of the employer, they must attach proof of their authority to do so — a written power of attorney (Vollmacht). This one arrived without it, and the employee promptly rejected it in writing within two days. Under German law (§ 174 BGB), that rejection alone makes the dismissal void, regardless of whether the person actually had authority.

The second dismissal (14 April 2023) failed for a different reason. Because the first dismissal had already been delivered, the employer was required to consult the staff council (Personalrat — the public-sector equivalent of a Betriebsrat, the employee representative body required in most German workplaces with five or more employees) all over again before firing a second time. Instead, an HR employee simply called the council chairman on the phone and got a spontaneous „yes.” That is not how it works: the full council must pass a proper resolution. The court found the employer knew this, making the dismissal invalid.

The third dismissal (15 May 2023) held up in court. By this point the employer had done the paperwork properly, the staff council had formally agreed, and — crucially — the employee was still within his six-month probationary period on the day the letter arrived. Under German law, the full dismissal protection act (Kündigungsschutzgesetz) only kicks in after six months. During probation, employers have wide freedom to let someone go, and the staff council only needs to be told a general assessment, not specific incidents. Several arguments the employee raised — including disability discrimination and a missing prevention procedure — were rejected because he had not brought them up in the first-instance court proceedings. German procedural law (§ 6 KSchG) bars employees from introducing new grounds for invalidity only in the appeal stage.