Works council participation when AI is deployed
Several participation rights apply side by side when AI is deployed at work. The most important one does not turn on the employer's intention but on whether the system is technically capable of monitoring conduct or performance.
AI changes how work is organised, which makes it a matter for the works constitution. The German legislature acknowledged this in 2021 and wrote artificial intelligence expressly into the Works Constitution Act. The participation rights apply side by side rather than as alternatives.
The participation rights at a glance
- InformationSection 80(2) BetrVG. The employer informs on its own initiative, not only on request. The limit lies where the employer itself does not know.
- Expert supportSection 80(3) sentence 2 BetrVG. With AI an expert is to be brought in, because otherwise the council cannot assess the system. A standing expert may be agreed.
- Planning of processesSection 90(1) no. 3 BetrVG. A right to be consulted on whether AI should be used at all and on how it is configured.
- Monitoring devicesSection 87(1) no. 6 BetrVG. Genuine co-determination as soon as the system is technically capable of monitoring conduct or performance.
- Selection guidelinesSection 95(2a) BetrVG. Where AI is used to draw up guidelines for hiring, transfer or dismissal, co-determination is comprehensive.
- Individual measuresSections 99 and 102 BetrVG. The employer has to set out the assessment on which its own decision rests. Passing on the result of an AI analysis is not enough.
Four steps before deployment
Schritt 1: Assess technical capability
Everything starts with the question whether the system allows conclusions about individual employees. That decides whether genuine co-determination applies or only information and consultation.
Schritt 2: Assemble the documents
The works council may ask for the documents that allow a proper consultation, including information on how the system works. What the employer cannot obtain from the vendor it does not owe, which is why this question belongs in procurement.
Schritt 3: Settle the expert
With AI, section 80(3) sentence 2 BetrVG provides for an expert. Agreeing on a standing expert saves the same discussion with every further tool.
Schritt 4: Conclude a works agreement
It sets the permitted uses, the review of outputs, the disclosure of AI use and the bans on entering sensitive data. A review clause keeps it aligned with the technology.
What belongs in a works agreement
- Technology-neutral wording, so that the next tool does not trigger the next negotiation
- Defined areas of use rather than a blanket permission
- A duty to have outputs reviewed by a responsible human being
- Disclosure of AI use to supervisors where it shapes the work product
- A ban on entering sensitive personal data and trade secrets into public tools
- A pilot phase with an evaluation afterwards and fixed review intervals
How we help
We map the planned system onto the participation rights, prepare the information package and draft the works agreement. On request we accompany the negotiation, including on the works council side.
AI tool rolled out, works council not yet asked?
We will tell you which participation right applies and draft the works agreement.
Get in touchFrequently asked questions
When does the works council have to be involved?
In practice already at the planning stage. Section 90(1) no. 3 BetrVG names the use of artificial intelligence expressly and gives the works council a right to be informed and consulted on the planning of working procedures and processes. The genuine co-determination right under section 87(1) no. 6 BetrVG is added as soon as the system is capable of monitoring conduct or performance.
We do not intend to monitor anyone. Does section 87(1) no. 6 BetrVG still apply?
Yes, if the system is capable of it. Settled labour court case law does not look at the intention to monitor but at the technical capability to check performance. What matters is whether the employer can draw conclusions about individual employees from the system.
What if employees use private accounts?
If the employer has no access to the usage data or the histories, the objective possibility of monitoring is missing and co-determination under section 87(1) no. 6 BetrVG does not arise. That relief reaches only so far. The data protection and trade secret questions remain.
May the works council bring in an expert?
With AI it must. Section 80(3) sentence 2 BetrVG provides for an expert to be brought in where the works council has to assess the introduction or use of artificial intelligence. Sentence 3 allows the parties to agree on a standing expert, which lowers the effort on both sides.
And if the system contains no AI at all?
The same co-determination right continues to apply, only the AI-specific rights fall away. Section 87(1) no. 6 BetrVG attaches to the capability of monitoring conduct or performance and not to the technology used. Bringing in an expert under section 80(3) sentence 2 BetrVG and the information duty under Article 26(7) AI Act, by contrast, apply only where AI is involved. Time recording, logs and cameras without an AI element are covered by the page on monitoring in the workplace.
Is the information duty under Art. 26(7) AI Act enough?
No. The EU duty to inform employee representatives before putting a high-risk system into service sits alongside the national participation rights and does not replace them. Meeting Art. 26(7) AI Act alone leaves the German co-determination requirements untouched.