Works council and artificial intelligence: Why AI surveys trigger new co-determination rights

Employee surveys: between digitalization, surveillance and co-determination

Digital employee surveys have become standard practice in modern HR. However, the use of AI-supported analytics is fundamentally changing the legal framework. What was once considered a harmless, anonymous survey can now be a monitoring tool subject to co-determination. Companies using AI-based survey or people analytics tools are legally obligated to involve the works council. Otherwise, the entire system risks being deemed legally invalid.

Co-determination according to the Works Constitution Act

The central point of reference is Section 87 Paragraph 1 Number 6 of the Works Constitution Act (BetrVG). According to this provision, the works council has a mandatory right of co-determination regarding the introduction and use of technical equipment designed to monitor the behavior or performance of employees. The decisive factor is not whether monitoring actually takes place, but whether the system is objectively capable of doing so. The mere theoretical possibility of evaluating performance or behavior is sufficient.

This is precisely where the use of AI comes in. Modern survey platforms no longer limit themselves to collecting individual responses. They analyze free text, recognize sentiments, create group profiles, and evaluate response behavior. Even if individuals are not to be identified, the technical possibility of re-identification or group assignment can be sufficient to trigger participation.

Anonymity does not protect against participation.

In practice, it is often argued that employee surveys are anonymous and therefore not subject to co-determination. This argument no longer holds true for AI-supported systems. The decisive factor is not the employer's intended use, but the technical capabilities of the tool employed.

AI-based sentiment analysis, automatic reminder functions, or the evaluation of participation rates can allow conclusions to be drawn about behavior, engagement, or work discipline. This affects workplace conduct, which can additionally establish a right of co-determination under Section 87 Paragraph 1 Number 1 of the German Works Constitution Act (BetrVG).

Information and control rights of the works council

In addition to legally enforceable co-determination rights, there are extensive rights to information. According to Section 90, Paragraph 1, Number 3 of the German Works Constitution Act (BetrVG), the employer is obligated to inform the works council at an early stage about the planning and introduction of new technical processes. This explicitly also applies to AI systems.

The employer must disclose not only which questions are asked, but also how the data is processed and what analyses are technically possible. The works council is entitled to a transparent explanation of how the system works. A mere reference to data protection or provider certifications is insufficient.

Section 80, paragraph 3 of the German Works Constitution Act (BetrVG) is particularly relevant. Since the Works Council Modernization Act, it has been explicitly clarified that the works council may regularly consult experts when AI is being used. The involvement of external expertise is legally required. This is intended to compensate for the employer's structural knowledge advantage.

Selection decisions and AI

AI systems are increasingly being used for personnel-related decisions, such as evaluations, talent analyses, or the preparation of dismissals. If AI is used in the development or application of selection guidelines, Section 95 Paragraph 2a of the German Works Constitution Act (BetrVG) applies. The works council's right of co-determination exists even if the selection criteria are developed wholly or partially automatically.

Impact of the European AI Regulation

The European AI Regulation (Regulation (EU) 2024/1689) has been in force since August 2024. While it does not contain direct co-determination rules, it tightens the requirements for transparency, documentation, and traceability of AI systems. These requirements have an indirect impact on works constitution law.

An AI system whose functionality is not clearly documented cannot be properly reviewed by the works council. Without this transparency, legally compliant implementation is virtually impossible. Therefore, employers must disclose how AI-supported surveys work, even for regulatory reasons alone.

Case law on the demarcation

Current case law demonstrates that not every use of AI automatically requires co-determination. The Hamburg Labor Court ruled on January 16, 2024 (Case No. 24 BVGa 1/24) that no co-determination rights apply when employees voluntarily use AI tools via private accounts and the employer has no access to the data. However, the legal assessment changes as soon as company systems are used or evaluations are carried out centrally.

Practical consequences for companies

Companies should not treat AI-supported surveys as a purely HR measure, but rather as a technical implementation subject to co-determination. Significant risks arise from the early involvement of the works council. These include not only conflicts under works constitution law, but also the invalidity of the entire measure.

A company agreement is regularly required, clearly regulating which data is collected, which analyses are permitted, and for what purposes the results may not be used. In particular, use for performance or behavior monitoring must be explicitly excluded.

Conclusion

The use of AI in employee surveys marks a legal turning point. Anonymity is no longer sufficient to exclude co-determination rights. The crucial factor is the system's technical capability for monitoring. Employers should only introduce AI surveys if transparency, documentation, and co-determination are guaranteed from the outset. Those who involve the works council too late, or not at all, risk not only conflicts but also a legally untenable system.

Frequently asked questions about the co-determination rights of the works council in AI surveys