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An incapacitated employee should be given extended time to give a statement prior to a termination on spec

According to a decision of the state labour court of Berlin-Brandenburg, an employee must be given extended time to give a statement regarding a termination on spec, if they are unable to work due to ongoing sickness over a long period of time (docket number: 10 Sa 378/16).

The severely disabled employee worked as an accountant for the defendant. An accounting review highlighted inconsistencies regarding a cheque for the sum of 3,000.00 EUR, which had been cashed by the employee. This raised suspicions of embezzlement and the employee was asked to give a written statement within one week, by April 7. Due to ongoing sickness, the employee was in a rehabilitation clinic at the time of the request. On April 7, she asked for an extension of the deadline and simultaneously indicated her willingness to resolve the problem. The employer declined her request for an extension and terminated the employment agreement on spec without, alternatively with cause. Additionally he terminated without, alternatively with cause due to the employee’s actions.

According to the decision of the state labour court, the termination of the employment contract was invalid. The integration office only agreed to a termination on spec. The termination on spec was invalid as the employee had not had opportunity to give her statement, which is a prerequisite for the termination’s validity. It said that the employer does not have to prolong the timeframe for the employee’s statement, if it can be sure that there will be no statement in the near future. Here, however, the employer should have prolonged the deadline in light of the employee’s correspondence on April 7. The employer was aware of the employee’s sickness and there were no signs that she was unwilling to resolve the problem. Further, the employee was not entitled to continued remuneration and was not due to return to work imminently. Therefore, the employer had no reason to act immediately, as there was no risk of repetition.

Generally, a hearing of an employee should take place within one week after learning about any suspicious facts. However, certain situations, such as an employee’s sickness, may lead to an extension of the timeframe. The period can therefore vary from case to case, and factors to take into account include the employee’s right to remuneration, or continued remuneration, and their willingness to resolve the problem.