Termination only on the basis of suspicion – Basics and difficulties

We recently reported on third parties’ pressure to terminate an employee in our blog. This time, too, we would like to take a current judgment (Federal Labour Court of Germany (“Bundesarbeitsgericht”) from 2.3.2017, docket number 2 AZR 698/15) as an opportunity to report on a further special possible termination: a termination based only on suspicion of unacceptable behavior.

German law also permits dismissal on grounds of suspected unlawful or unacceptable behavior (if it is a particularly serious suspicion and can be substantiated by facts). This means that the termination is permitted because of a presumed behavior, even if this behavior is not proven. The prerequisite of this termination is, however, that the employer has tried to clarify the truth completely, but this has remained unsuccessful. If, however, it turns out that the suspicion was faulty, termination is not possible; if the suspicion proves to be true, the employee can be terminated because of the concrete behavior.

It is also important that a deadline of two weeks has to be observed for the termination. It is necessary first of all that the employer has identified the facts as far as possible and has tried to clarify the suspicion. The worker must, in particular, be given the opportunity to comment; he must be heard. Only if, despite all these measures, the suspicion cannot be clarified, is a suspicion termination possible, which is to be pronounced within two weeks after the conclusion of the observation and hearing.

But what happens if the employee has been released in criminal proceedings? Is the employer still able to rely on the suspicion of a corresponding infringement? What is the allowed reason for the suspicion of the employer? These questions are answered by the current judgment of the Federal Labor Court. In the first place, it is clarified that the labor courts (when reviewing a dismissal) are not bound by the decision of the criminal courts. A suspicious termination thus also remains possible despite an acquittal. The decisive factor is the independent assessment of the facts by the labor courts. The acquittal can be considered here as an additional fact, but all circumstances must be considered comprehensively.

Thus, the grounds of a termination based only on suspicion have become clear: Criminal law and labor law differ. Labor law demands a serious suspicion based on facts, which must be submitted by the employer. In addition, it is imperative that the suspicious behavior was most likely true. Ultimately, all incriminating and mitigating facts must be weighed. Only under these conditions can the employment relationship be terminated without any clear evidence of a misconduct.