Dismissal on suspicion (“Verdachtskündigung”) – reasonable time period to give a statement regarding the accusations

On 21 March 2018, the state labor court of Schleswig-Holstein ruled that a valid “dismissal on suspicion” (“Verdachtskündigung”) requires that the affected employee had been granted a reasonable time period to give a statement regarding the accusations (docket number 3 Sa 398/17). A “dismissal on suspicion” is void if the employer issues the notice of termination after having granted a time period of only two working days to the employee to issue his statement regarding the accusations.

A so-called “dismissal on suspicion” can justify a dismissal if alleged misconduct of the employee has not been proven but there are indications which lead to a severe suspicion of such misconduct. In such a case a “dismissal on suspicion” can be justified as the severe suspicion itself may have resulted in the destruction of trust between employer and employee, which is necessary to continue the employment relationship. In order to issue a valid “dismissal on suspicion”, the employee must first be heard. He has to be granted the opportunity to give his opinion regarding the allegations.

In the case at hand, the employer wanted to dismiss the employee based on the suspicion that he had committed criminal actions. The employee had been equipped with a laptop for his service as a sales representative. The employee then became and remained incapacitated to work. After a while, the employer demanded that the employee give back the laptop. On 3 August 2016, the employee sent a different laptop to the employer (however, it remained in dispute whether this happened on purpose). The employer then issued a letter to the employee, asking him for a statement. The employee received the letter on Thursday evening, 4 August 2016, the earliest. In this letter, the employer requested a statement by 1 p.m. on Monday 8 August 2016. After the time period expired, the employer issued a “dismissal on suspicion”.

The state labor court of Schleswig-Holstein ruled that the time period of not even two full working days had been unreasonably short. Even though the employer knew from different disputes with the employee that the employee had legal counsel, the letter had not been faxed or sent to the employee’s legal counsel. Additionally, the employer knew about the employee’s incapacity to work. Based on these facts, the period of two working days for a statement was unreasonably short. Accordingly, the court ruled that the “dismissal on suspicion” was unjustified and void.