Dismissal

A cycling accident with fatal consequnces – Regional Labour Court rules over injury and dismissal

The problem Around 20% of all dismissals of employees are subject to legal action. Therefore it is reasonable that employers want to make sure that dismissals are legally sound. One of the most important points in such lawsuits is whether the letter of notice has reached the employee, since the employer must not only prove that he sent the letter of notice, but also that this letter reached the employee, i.e. that he or she had the opportunity to take note of it. This often leads to uncertainty as to whether or when the letter reached the employee. Such an …

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Federal Labour Court specifies requirements for termination of employment due to insufficient fitness

1. The Problem There are many jobs that require excellent mental or physical fitness. If this fitness is no longer maintained, the question often arises as to whether the employment relationship can still be maintained. This was also the problem in a case decided by the Federal Labour Court (docket number: 7 AZR 292/17) on 17 April 2019. The plaintiff had been employed as a stewardess for more than 20 years until an aeromedical institute determined that she was no longer fit to fly. According to the collective bargaining agreement, the employment relationship in this case ends automatically (at the …

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The end of special rights for the church?

The problem Equal treatment is not only becoming more and more important since #metoo a few years ago, but has influenced the European Union for nearly 20 years. On June 2000 the Council Directive 2000/43/ implemented the principle of equal treatment between persons irrespective of racial or ethnic origin into European Law. Since then more and more European and German Laws were brought into force to promote equal treatment between the sexes, ethnicities, religions, disabilities, ages and sexual identities. A special role has so far been assigned to the churches in Germany. Since German constitutional law grants them the right …

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Mass dismissal: Employer has to notify the Employment Agency prior to the delivery of the termination notice to the individual employees

On 13 June 2019, the Federal Labour Court (docket number 6 AZR 459/18) ruled that a mass dismissal notification can be effectively filed even if the employer has already taken the decision to terminate the employment relationships at the time of its receipt by the Employment Agency. In the event of mass dismissals and subject to the fulfillment of all other statutory requirements, terminations, however, would only be effective if the employer notified the Employment Agency prior to the delivery of the termination letters to the individual employees. The parties were in dispute as to whether the defendant was able to …

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German Regional Labor Court rules: Employer’s evidence of employee‘s breach of contractual duties admissible even though employer has violated data protection law when obtaining it LAG Baden-Wuerttemberg, ruling dated 6 June 2018 – 21 Sa 48/17 Appeal filed with the Federal Labour Court (Bundesarbeitsgericht), docket no. 2 AZR 426/18

With its judgment dated 6 June 2018 (docket number 21 Sa 48/17), the Higher Regional Labor Court of Baden-Wurttemberg (Landesarbeitsgericht Baden-Württemberg) found that an employer may use evidence proving an employee’s breach of a contractual duty against the employee, even though the evidence had only been accidentally discovered during a search of the employee’s IT-equipment. The court decided that the evidence could still be used, even if the original search itself was inadmissible pursuant to data protection regulations. However, use of such evidence shall be limited to scenarios in which the violation of the employees’ general right of privacy does …

German Regional Labor Court rules: Employer’s evidence of employee‘s breach of contractual duties admissible even though employer has violated data protection law when obtaining it LAG Baden-Wuerttemberg, ruling dated 6 June 2018 – 21 Sa 48/17 Appeal filed with the Federal Labour Court (Bundesarbeitsgericht), docket no. 2 AZR 426/18 Read More »

Notices of termination may not be signed before mass dismissal notification has been submitted

With its judgment dated 21 August 2018, the Higher Regional Labour Court of Baden-Wurttemberg (Landesarbeitsgericht Baden-Württemberg) decided that the dismissal of an employee as part of a mass redundancy is invalid if the notice of termination is signed prior to receipt of the mass dismissal notification to the authority. The time of the receipt of notice of termination by the employee is irrelevant (docket number: 12 Sa 17/18). Under German law, the Employment Office must be notified prior to dismissals as part of a mass redundancy. This reflects obligations under the Directive 98/59/EC. The termination at issue was issued as …

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Occupational health and safety standards as a limit to the employer’s right to issue instructions

The allocation of a job which does not meet the requirements of Sec. 618 para. 1 German Civil Code (Bürgerliches Gesetzbuch, BGB) in conjunction with the public occupational health and safety standards may nevertheless correspond to the employer’s equitable discretion if it concerns only minor or short-term infringements which cannot cause lasting damage. This is what the German Federal Labor Court (Bundesarbeitsgericht, BAG) decided in its judgement of 28 June 2018, docket number 2 AZR 436/17. The parties disputed the existence of an employment relationship. Since 2006, the plaintiff (former employee) had been employed by the defendant (the employer) as …

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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 …

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Extraordinary termination due to feigning incapacity for work

On 7 July 2017 the State Labour Court in Cologne (docket number 4 Sa 936/16) decided that a strong suspicion that an incapacity for work is feigned, is sufficient to justify a termination for good cause, in the course of a dismissal on grounds of suspicion, even though a certificate of incapacity exists. In general a certificate of incapacity for work has such strong evidential value that a trial judge is usually entitled to consider the proof of incapacity for work as demonstrated. However, the evidential value of a certificate of incapacity can be displaced if the employer demonstrates reasonable …

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Threat to commit suicide or to run amok can justify a dismissal for cause with immediate effect

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 …

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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 …

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Inadmissible evidence through installation of a keylogger

Using a software keylogger may not always be much help in supporting a termination for cause, as a recent case before the Federal Labour Court shows (judgment dated 27 July 2017, docket number 2 AZR 681/16). The employee had worked for the employer since 2011. When opening up its network, the company informed employees that internet and software use would be monitored. The company monitored keyboard use and also produced screenshots regularly. As a result of this, the company noticed that the employee had spent considerable parts of his working time on private use of the network. The company therefore …

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Competing activities during notice period can justify an immediate termination for cause

In its judgment dated 12 April 2017 (docket number 3 Sa 202/16), the Higher Regional Labour Court of Schleswig Holstein found that activities for a competitor during an employee’s notice period may justify an immediate termination for cause. Under the employment contract, the employee had committed not to hold any shares of a company in direct or indirect competition with his employer without first obtaining prior approval. In addition, under a statutory non-compete obligation, an employee may not carry out competing activities to the employer’s disadvantage. The employee was found to be in breach of both the contractual and statutory …

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Special case of termination protection: Third parties’ pressure to terminate an employee

The German right of termination is known to be quite strict. A reason for termination is always necessary. It is herefore surprising that such a reason exists even if third parties exert pressure on the employer to terminate the contract (“Druckkündigung”). The basics are presented below. By judgment of 15.12.2016 ( docket number 2 AZR 431/15), the Federal Labour Court of Germany (“Bundesarbeitsgericht”) has now further developed the information and defence duties of the employer before he terminates the contract. The employee was convicted of child abuse. There was no relation to the activity of the company. When the employee …

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Shortened notice period during probationary period requires clear language

German law allows a short notice period of two weeks during a probationary period, which can be agreed for up to six months. However, if the employment contract generally provides for a longer notice period, without making clear that this longer notice period only applies after the end of the probationary period, that longer notice period will also apply during the probationary period. Following this judgment by the Federal Labour Court dated 23 March 2017 (docket number: 6 AZR 705/15), employment contracts should therefore clearly specify the circumstances under which an extended notice period shall apply. In this case, the …

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