Works councils and learning platforms: co-determination

Section 87(1) no. 6 BetrVG gives the works council a right of co-determination over the introduction and use of technical systems designed to monitor employees' conduct or performance. Under the settled case law of the Federal Labour Court, it does not matter whether the employer intends to monitor. It is enough that the system is objectively capable of collecting and evaluating conduct- or performance-related data.

A learning platform almost always qualifies: it stores who started and completed which course when, how long someone took and which assessment results they achieved. It is therefore capable of monitoring performance and conduct. Without the works council's consent or a ruling of the conciliation committee (section 87(2)) it may not be introduced; the same applies to significant changes, such as new reporting features.

Besides the technical side, the content side is affected. Sections 96 to 98 BetrVG govern participation in vocational training. Under section 96, employer and works council promote vocational training; on request, training needs must be determined and discussed with the works council. Under section 97(1), the employer consults the works council on setting up and equipping in-house training facilities and introducing in-house training measures. Section 97(2) grants co-determination where the employer's measures change jobs so that employees' skills are no longer sufficient.

Section 98 is central: the works council co-determines how in-house vocational training is carried out (paragraph 1). It can object to the appointment of a person entrusted with delivering it if that person lacks the necessary suitability or neglects their duties (paragraph 2), and it can propose employees to take part (paragraph 3). If no agreement is reached, the conciliation committee decides (paragraph 4). Under paragraph 6 this applies accordingly to other training measures in the establishment.

Since the Works Council Modernisation Act of 2021, section 90(1) no. 3 BetrVG expressly mentions artificial intelligence: the employer must inform and consult the works council in good time about planning work processes and procedures, including the use of AI. Under section 80(3), second sentence, calling in an expert is deemed necessary when the works council has to assess the introduction or use of AI.

This matters for learning platforms with AI tutors, automated grading or recommendations. In addition, the AI Act requires deployers of high-risk AI systems at the workplace to inform workers' representatives and affected workers before putting the system into service (Article 26(7) AI Act).

A works agreement under section 77 BetrVG creates binding rules. It should be concrete enough that every report can be checked against it. The following points have proven useful:

In the public sector, the Federal Staff Representation Act or the state staff representation acts apply instead of the BetrVG; they provide comparable participation rights for technical systems and further training. Universities are usually subject to state law.

If the platform is used for occupational safety instruction (section 12 of the Occupational Safety and Health Act), the right of co-determination under section 87(1) no. 7 BetrVG may also be engaged. A works agreement does not replace the data protection review; but under Article 88 GDPR it may contain more specific rules for processing in the employment context, which must then meet the GDPR's requirements.

This article explains the law in general terms and is not legal advice. For any individual case, the official text in its current version prevails; if in doubt, consult a lawyer, your data protection officer or the competent supervisory authority.