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Only once is once too often

The Higher Labor Court Hesse (Landesarbeitsgericht Hessen) ruled on 23 March 2015 (ref. no. 16 Sa 646/14) that handing the employer an intentionally manipulated sick note can justify an extraordinary dismissal even if the employment relationship lasts for more than 23 years without significant misconduct.

In this case the employee, a mother of 2 children who had more than 23 years’ service with the employer, skipped work for a few days. Accordingly the employer asked for her sick notes. The employee handed in a sick note issued by a pediatrician which proved to have been manipulated by a third person. The employer terminated her employment without notice and alternatively with a notice period. The employee challenged the termination as invalid and filed a dismissal protection claim. While the court of first instance ruled in favor of the plaintiff, the Higher Labor Court Hesse upheld the extraordinary dismissal.

Under German dismissal protection laws an extraordinary dismissal is only valid if both (i) there is a just cause for the termination and further (ii) an overall weight of interest finds the termination proportionate. Both courts approved that the manipulation of a sick note generally provides for a just cause for a termination. However, when weighing the different interests, the Higher Labor Court found that the wilful action of the employee as well as her acting in secrecy must be held against her. Even her loyal service to the employer for more than 23 years may not weigh against the misconduct. Therefore the court found that in her case a formal warning letter prior to her termination as well as termination with notice would be an unreasonable burden for the employer. In conclusion the court upheld the extraordinary dismissal.

Until recently German dismissal case law followed the “Emily-Doctrine” which basically states that an employee’s loyal service for many years builds up trust in an employment relationship which will not be destroyed by one single act of misconduct. The court departed from this principle. It remains to be seen if other courts will follow this change in direction.