Category Archive: Dismissal

Inadmissible evidence through installation of a keylogger

Using a software keylogger may not always be much help in supporting a termination for cause, as a recent case before the Federal Labour Court shows (judgment dated 27 July 2017, docket number 2 AZR 681/16). The employee had worked for the employer since 2011. When opening up its network, the company informed employees that …

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Competing activities during notice period can justify an immediate termination for cause

In its judgment dated 12 April 2017 (docket number 3 Sa 202/16), the Higher Regional Labour Court of Schleswig Holstein found that activities for a competitor during an employee’s notice period may justify an immediate termination for cause. Under the employment contract, the employee had committed not to hold any shares of a company in …

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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 …

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Ineffective termination in spite of frequent short term absences due to illness

On 7 March 2017, the Higher Labour Court (LAG Mecklenburg-Western Pomerania, docket number 2 Sa 158/16) decided that a termination can be ineffective even though the employee’s absences due to illnesses are frequent and significant. The illness must fulfill the requirements of the negative prognosis that the employee will not come back to work for …

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Shortened notice period during probationary period requires clear language

German law allows a short notice period of two weeks during a probationary period, which can be agreed for up to six months. However, if the employment contract generally provides for a longer notice period, without making clear that this longer notice period only applies after the end of the probationary period, that longer notice …

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Employer May Ban Employees From Wearing Headscarves

In a recent ruling made on March 14, 2017, the European Court of Justice (ECJ) decided (docket nos. C-157/15, C-188/15) that employers may prohibit staff from wearing Islamic headscarves under certain circumstances. The ECJ held that such prohibitions do not constitute “direct discrimination”; instead, limits on visible religious wear shall be considered permitted under EU …

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Works council’s request to dismiss an employee qualifies as an urgent operational reason for dismissal

Under German law, the works council can request that an employer dismisses or reassigns an employee if the employee has violated the law or has grossly violated principles set forth in sec. 75 of the Works Constitution Act, such as by showing racist or xenophobic behavior in the workplace. If the employer does not comply …

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Boon and bane of social media

Employers often encourage their employees to create social media profiles with platforms like XING or LinkedIn since they will also benefit from the marketing effects. However, using social media may also cause substantial internal conflicts. Such a conflict was recently subject to a ruling by the Regional Labor Court of Cologne (Landesarbeitsgericht Köln, LAG) on …

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Dismissal Protection Act not applicable to managing directors despite employee status

While recent EU law developments on the potential employee status of managing directors (cf. ECJ, June 9, 2015, docket no. C-229/14 – Balkaya) and decisions of the German Federal Labour Court regarding the procedural issue of giving managing directors access to the Labour Courts under certain circumstances have somewhat blurred the dividing lines between managing …

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Release of documents when leaving the company

The State Labor Court of Rhineland-Palatinate (Landesarbeitsgericht Rheinland-Pfalz)  decided on 01.09.2016 (5 Sa 139/16) that the defendant is obliged, according to her employment contract, to hand over all operational working materials and documents, as well as copies and recordings, to the plaintiff when leaving the company. The plaintiff runs an enterprise which trades in rice …

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