In order to protect employees from termination where there is suspicion that they have committed a crime, such a termination is subject to very strict conditions. In particular, the probability that the suspected employee is in fact guilty of the assumed crime has to be so high that the suspicion is considered urgent. The urgency of a suspicion can only be assumed if there are no reasons for also suspecting other employees of the committed crime.
In the present case (judgment of the Regional Labour Court of Hamm dated 14 August 2017, docket number 17 Sa 1540/16) an employee of the Sparkasse ordered a sealed case from a money transport service that should have contained 115.000 Euros. She opened it alone disregarding the four-eyes principle, then called another colleague to show him the content of the case, who could only find detergents and baby food but not any money in the case. The employee who opened the case claimed that she only found those things in the sealed case when she opened it alone.
After several investigations by the company itself, as well as by the public prosecutor, the company declared the termination of the employment contract due to the suspicion of a criminal offence referring to circumstantial evidence such as conspicuous financial transactions of the employee who opened the case. Besides that there was no reason for ordering such a high amount of cash.
The employee sued the employer using the dismissal protection suit, which was then approved by the Labour Court of Herne (Arbeitsgericht Herne, ArbG Herne). The employer then filed an appeal.
The Regional Labour Court of Hamm (Landesarbeitsgericht Hamm, LAG Hamm) decided that the suspicion termination was not justified and consequently ineffective because the employee’s guilt can neither be proved nor assumed with a probability that is high enough to come to the conclusion that she was the only person who could be blamed for taking the money. Besides that the court also censured the company for not having a hearing with the accused employee during the company’s investigations, which has to take place as a requirement for the suspicion termination.
This judgment shows that the suspicion termination as a way of terminating an employment contract by the employer can only be used very rarely and under very strict conditions. The employee’s risk of being blamed for crimes they have not committed and the effect on their employment is unreasonable. Therefore the blurring of borders between criminal law and the principles of German labour law has to be avoided as strict as possible in order to protect the employees as individuals.