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Special case of termination protection: Third parties’ pressure to terminate an employee

The German right of termination is known to be quite strict. A reason for termination is always necessary. It is herefore surprising that such a reason exists even if third parties exert pressure on the employer to terminate the contract (“Druckkündigung”). The basics are presented below. By judgment of 15.12.2016 ( docket number 2 AZR 431/15), the Federal Labour Court of Germany (“Bundesarbeitsgericht”) has now further developed the information and defence duties of the employer before he terminates the contract.

The employee was convicted of child abuse. There was no relation to the activity of the company. When the employee came to work, other employees and workers from third-party companies working on the site refused to do their work as long as the employee concerned was staying in the terminal. The employer terminated the contract.

The Federal Labour Court considered the dismissal inadmissible. The employer must first try to avoid the pressure exerted. He must protect his employee and do everything he can to make the employees or third parties aware of their threats. It is necessary for the employer to point out the unlawfulness of the workforce’s actions and to threaten labour law measures for further infringements. A pressure termination is only possible if this is unsuccessful. This obligation on the employer applies even if the reason for the pressure is a crime committed by the worker outside working hours.

However, these strict guidelines  only apply where  there are no behavioural, personal or operational reasons which justify the termination, so the reason for the termination lies solely in the pressure of third parties. This is different to the case where there is actually a reason for dismissal (eg theft). Here the termination is not based on pressure, but on the misconduct. The strict conditions therefore do not apply.

A termination due to the pressure of third parties is thus possible as ultima ratio (last resort). However, it must always be ascertained whether the pressure can be eliminated by other means.