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AI is no longer a topic for the future; it has become an integral part of everyday work. Whether it’s shift planning, recruitment or analysing performance data, smart tools promise efficiency and new possibilities, but they also revive old fears and familiar labour law hurdles. As AI frequently records and evaluates employee behaviour or performance (e.g. through the use of Copilot), the works council has an enforceable right to co-determination under § 87 (1) No. 6 of the German Works Constitution Act (BetrVG). Only a corresponding agreement can avoid the risk of a court order against the use of AI.
What companies should consider
- Inform and involve early: The works council must understand the purpose of the AI before it is introduced (also to address general concerns about the use of AI).
- Regulate together: Works agreements create clarity, for example on data collection and usage, decision-making processes or transparency.
- Expertise is possible: For complex tools, the works council can consult external experts.
- Conciliation board in case of dispute: If no agreement is reached, the conciliation board will decide on the use of AI.
In conclusion, AI can do a lot, but not everything on its own. Anyone who wants to use AI in the workplace must consult the works council.
About the author(s)
Annette is an employment litigation partner based in our Frankfurt office.
Nadine Birke is a German qualified lawyer working for the employment & labour law practise of Gowling WLG's Frankfurt office.
