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For the Children and the Constitution

In principle, an employment relationship can only be terminated by observing the applicable notice period. However, in rare circumstances, either party to the employment contract is entitled to terminate the employment relationship for good cause with immediate effect (summary dismissal).

Recently, the labour court of Mannheim (7 Ca 254/14) ruled that a right-wing extremist worldview may qualify as a reason for summary dismissal. Within public service, reasonable doubts regarding an employee’s loyalty to the Constitution may pose a “lack of aptitude” if the lack of loyalty has led to a concrete negative effect on the employment relationship.

The plaintiff had been working at an after school day care center operated by the defendant, the City of Mannheim. In this position, he had guidance over a range of children between the age of 6 and 14. After becoming aware of the following incidents, the defendant terminated the employment relationship with immediate effect:

– On his Facebook page, the plaintiff reconstructed a violent scene using children’s toys from the day care center.

– He said to a co-worker “If he [a child from the day care center] were my son, he would be wearing jump boots and a red armband.”

– The plaintiff wore “Thor Steinar” clothing (Thor Steinar is a German clothing brand closely associated to neo-Nazism).

– A baseball bat linked to the hooligan scene was found in plaintiff’s locker.

– He had attended several events organized by the NPD (National Democratic Party of Germany, a far-right political party).

The labour court dismissed the plaintiff’s wrongful termination claim. Based on these incidents, the court saw no reasonable doubts regarding the plaintiff’s right-wing extremist worldview. It ruled that the dismissal was justified because, as a public servant, the plaintiff had an obligation of a minimum of loyalty to the Constitution. Additionally, the area of child education is a particularly sensitive matter. Since the plaintiff had been entrusted with young, impressionable minds, he had an even greater obligation to show allegiance to the Constitution. A hooligan prone to violence is simply unsuitable for the upbringing of children. Moreover, a person cannot work for a government body while at the same time aspiring to harm it. The court pointed out that, even though the NPD has not been banned by the Federal Constitutional Court, it may still pursue an anti-constitutional agenda.

Generally, an employee cannot be dismissed based on his political convictions. In this case, the employee’s freedom of speech collided with his obligation to consider and respect legitimate interests of his employer. It is currently unknown whether the plaintiff will appeal against this ruling.