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Suspicion of pretended sickness and activities for a competing company generally justified surveillance by a detective and immediate termination for cause

A new judgment of the Federal Labour Court (dated 29.6.2017, docket number 2 AZR 597/16) supports previous judgments concerning termination based on suspicion of breach of duties and furthermore sheds  light on the permissibility of carrying out surveillance on employees through a detective to clarify such suspicions.

In the case at hand the employee and employer argued about the effectiveness of an extraordinary dismissal. The employee was repeatedly certified unfit to work in 2014 and continuously certified unfit to work from end of January 2015 onwards. The employer suspected that the employee was not in fact sick, but used his time off sick to work for a competing company. The employer addressed the employee, but the employee did not speak out regarding this matter. Initial ground for suspicion was laid by the presence of his car at the carpark of the competing company, which was investigated by a detective instructed by the employer. Later on the employer learned of an email from the competing company addressed to a client of the employer, which again gave rise to such suspicions. Therefore the employer instructed a detective again, who, disguised as driver of a client, saw the employee conducting activities for the competing company, that were similar to those he conducted for the employer. The employer then dismissed the employee extraordinarily.

The Federal Labour Court ruled that activities for a competitor are in general an important reason for termination for cause. Also fraudulently obtaining a sick certificate is also considered an important reason to terminate extraordinarily. This does not only apply for the time period in which the employer is compelled to continue paying salaries but also afterwards.

Furthermore, the Federal Labour Court decided that the outcome of the detective’s surveillance could be used by the employer to justify the dismissal. Also, employers can generally claim compensation for the costs of legitimate detective investigations. However, the Federal Labour Court did not decide on whether or not the suspicions were sufficient for the termination for cause and the compensation of detective costs. Instead, the Federal Labour Court relegated this question back to the court previously engaged in the case.

For employers it is important to carefully assess the permissibility of detective surveillance in cases where it is suspected that employees are violating their contractual obligations. If the means of investigation are not legally permissible, this can render a termination null and void. It is good news for employers that with the present decision the Federal Labour Court emphasizes the legitimate interests of employers to investigate contractual violations of employees. The previous instance had considered these investigations illegal in the present case but are now overruled.