On 29 June 2017 the Federal Labour Court decided that a serious threat of committing suicide or to run amok can be a compelling reason to terminate an employment relationship for cause with immediate effect if the employee thereby seeks to exert pressure on the employer (docket number 2 AZR 47/16).
The employee and later plaintiff had been employed by the German federal state of Hesse since 1992 and worked – for most of the time – in road maintenance. He enjoyed special dismissal protection based on collective bargaining agreements. The employee had been suffering from psychological difficulties and, as a result, had a history of long-term and repeated sick leave. He had been recognized by the authorities as being “severely disabled” (“schwerbehindert”) in 2013.
The employee took part in a program to manage his work re-integration after a long-term sickness (“betriebliches Eingliederungsmanagement”). In August 2013 he attended a meeting regarding these integration measures. During this meeting there was discussion about which tasks the employee could still perform in spite of his psychological difficulties. The employee reacted very emotionally to a proposal by his employer. In this context the employee allegedly said in a very menacing manner that “he could not guarantee not to have a relapse”. He added that he “could also not guarantee not to kill himself or to run amok”. He also referred to his membership of a “rifle club”. According to a medical inspection the employee was sane and accountable at the time he made these comments. The employee did not subsequently distance himself from his comments.
The employer dismissed the employee for cause with immediate effect. The employee claimed that this dismissal was unjustified. The Labour Court (Arbeitsgericht) rejected his complaint. The employee, however, appealed against this decision and the Higher Regional Labour Court of Hesse (Landesarbeitsgericht Hessen) decided in his favour. It ruled that the threat was only a momentary failure and ultimately not credible. It hence regarded the dismissal for cause as not justified. It also stated that the employee was in a very emotional and unstable state. Furthermore it should be taken into account that a meeting regarding re-integration of a long term sick employee is to be considered a “protected environment” where the employee should be able to “open himself”.
The employer’s appeal to the Federal Labour Court (Bundesarbeitsgericht) was successful. According to the Federal Labour Court the lower instance did not take all relevant criteria into account and its overall consideration was not free from errors of law. In particular, the Federal Labour Court emphasized the severity of a “threat to commit suicide” and that the employee tried to exert pressure on his employer to prevent the assignment of certain tasks. It also made clear that the character of the meeting (integration management) was not relevant for assessing the gravity of the employee’s comments. The Federal Labour Court also stated that it was not decisive whether the employee was seriously considering suicide or running amok. It was sufficient that the threat seemed serious and that this impression was intended by the employee. The Federal Labour Court referred the matter back to the Higher Regional Labour Court for a new decision as the context and the exact content of the comments was still in dispute between the parties.
With this decision the Federal Labour Court is continuing its case law on threats made by employees to their employer. Such threats can qualify as a compelling reason for a dismissal for cause and it is not decisive whether the employee in fact plans to follow through with the threat. However, in each individual case all circumstances and the interests of both parties have to be taken into account. In the case at hand the employee allegedly threatened to harm himself and potentially others to gain personal advantages. The Federal Labour Court correctly stressed the gravity of such comments and made also clear that the context of a re-integration meeting with the employer does not change the severity of the threats.