Suspicion of termination

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The employer gives his employee a suspected dismissal if he suspects that the employee may have committed a criminal act or a serious breach of duty.

Germany

Legal position

According to the established case law of the Federal Labor Court (BAG), termination on suspicion constitutes an important reason for extraordinary termination in accordance with Section 626 BGB. According to the Federal Labor Court, a suspected dismissal is "permissible if strong suspicions are based on objective facts and the suspicions are likely to destroy the trust necessary for the continuation of the employment relationship". Furthermore, the employer must have made all reasonable efforts to clarify the matter. In particular, he must have given the employee the opportunity to comment.

If the dismissed employee is later found to be innocent, he or she is generally entitled to a reinstatement claim.

requirements

The following are required for a suspected termination to be effective:

  • the suspicion of serious misconduct by the employee,
  • based on objective circumstances and
  • appears mostly likely.
  • The alleged misconduct must be serious enough to result in a conduct-related termination.
  • The suspicion must be capable of shaking the trust required to continue the employment relationship and
  • the employer must have taken all reasonable steps to clarify the matter.

Development of case law on the admissibility of suspected dismissal

The Reich Labor Court (RAG) had already confirmed the admissibility of the suspected dismissal under certain conditions. In 1934, the RAG confirmed a judgment by the Cologne Regional Labor Court against a sales manager who had repeatedly received payments from customers but did not forward them to the employer. Since the objection that the bookkeeping of the department (which the defendant was in charge of) was inadequate prevented the clarification of the facts, the RAG decided that termination without notice on mere suspicion was not permissible. However, if the suspicion is substantiated “in a completely credible way”, the employer's trust is so shaken that a continuation of the employment relationship is unreasonable.

In the opinion of the RAG, even short notice periods do not have to be observed. In 1939, the RAG decided that a suspected dismissal without notice can also be permitted with a one-day notice period. In the case decided, the employee worked as a payer at the totalizator on the racetrack and had a notice period of one day. The suspicion of manipulation of the horse betting justified the termination without notice.

In 1955, the Federal Labor Court continued the case law of the RAG in matters of suspected dismissal. Even in the case of an acquittal in criminal proceedings , a suspected dismissal is permissible. In the case in question, the defendant was suspected of having committed insurance fraud through arson . In the criminal proceedings, the court found an urgent suspicion, but did not consider the guilt to be proven. The employer (a savings bank) then resigned without notice and retained the right to the BAG.

According to the case law of the BAG, the employee does not have to be at fault for the suspicion that leads to the suspected termination.

In a judgment of August 12, 1999, the BAG made it clear that even minor damage justified suspicion of termination, provided that the suspicion is likely to destroy trust. In the case in question, it was about an ICE steward who had sold a ham roll and collected the proceeds in his own pocket.

Development of case law on the right to reinstatement

In 1956 the Federal Court of Justice (BGH) postulates that the employee is entitled to reinstatement if the suspicion is dispelled. The BGH also regulates that not every suspicion is sufficient for a termination. The suspicion must be based on facts and be serious enough that a reasonable employer can derive mistrust of the employee from it. The trust must be so shaken that a continuation of the employment relationship in good faith is no longer reasonable.

Sense of justice

In some cases, the legal situation of suspected dismissal contradicts the legal feeling of many people. Many citizens are familiar with the presumption of innocence from criminal law . According to the case law of the BAG, this is not to be transferred to the suspected termination. In 1994 the BAG examined the conformity of its jurisprudence with Article 6 (2) ECHR as well as Article 12 and Article 20 GG and came to the conclusion that the application of the presumption of innocence in private law would lead to the employer up to a criminal conviction have no sanction options. However, these fundamental rights would apply to employers and employees. A weighing of both sides leads to the result that a ban on suspected dismissal is inappropriate.

In the public this is sometimes perceived differently. One example is the public debate on the Emmely case ruled on February 21, 2009 by the Berlin Regional Labor Court in the second instance in accordance with ongoing case law of the BAG in favor of Kaiser's Tengelmann . Wolfgang Thierse criticized the judgment of the Berlin-Brandenburg State Labor Court as "barbaric". It hurts the sense of justice and trust in democracy. As a result of the case, the principle of dismissal on suspicion has come under general criticism, also because critics see a connection with employment law offers on the Internet that offer to terminate employees who had otherwise become unpleasant to the employer by means of suspected termination. The Federal Labor Court declared the termination in the Emmely case on June 10, 2010 to be disproportionate.

literature

Comparative law

  • Wolfhard-Ulrich Orth: The termination on suspicion in a legal comparison Germany, Switzerland, Austria, and its compatibility with Art. 6 II ECHR . http://othes.univie.ac.at/6153/ , 2009.
  • Stephan Ebeling: The termination on suspicion. Termination of the employment relationship between trust and suspicion . Nomos, Baden-Baden 2006, ISBN 3-8329-1866-3 , Chapter 5, C III. 3.
  • Alexander Otto: The loss of trust in the employee as an important reason for terminating the employment relationship . Duncker & Humblot, Berlin 2000, ISBN 3-428-10218-5 , 3rd section.

Germany

  • Stefan Lunk: The termination on suspicion: A legal figure before the end? At the same time an overview of the current: case law. , NJW 38/2010, 2753
  • Tino Schlegeit: The BAG and the termination on suspicion , 2008, ISBN 978-3-631-57258-0
  • Markus Stoffels: The BAG's "Emmely" decision - just a clarification of misunderstandings? , NJW 3/2011, 118

Web links

Individual evidence

  1. ↑ RAG, judgment of June 23, 1934, Az. 318/33 (LAG Cologne), ARS vol. 21, p. 146.
  2. ↑ RAG, judgment of May 6, 1939, Az. 221/38 (LAG Munich), ARS vol. 36, p. 260.
  3. ^ BAG, judgment of May 12, 1955 , Az. 2 AZR 77/53 (LAG Hamm), guiding principle.
  4. ^ BAG, judgment of November 4, 1957 , Az. 2 AZR 57/56 (LAG Hamburg), guiding principle.
  5. ^ BAG, judgment of August 12, 1999 , Az. 2 AZR 923/98 (LAG Hamburg), full text.
  6. ^ BGH, judgment of July 13, 1956 , Az. VI ZR 88/55, full text.
  7. ↑ BAG, judgment of September 14, 1994 , Az. 2 AZR 164/94, full text.
  8. ↑ LAG Berlin, judgment of August 21, 2008 , Az. 2 Ca 3632/08, full text.
  9. ^ Associated LAG Berlin, press release ( Memento from November 1, 2010 in the Internet Archive )
  10. ↑ a b c online journal telepolis, Peter Nowak , February 24, 2009, discharge permitted on suspicion
  11. ↑ Emmely process. Cancellation due to 1.30 euros legal - Focus online, February 24, 2008.
  12. ^ Spiegel Online, February 26, 2009: Case "Emmely". Thierse is outraged by the “barbaric” verdict against the cashier
  13. ↑ BAG, judgment of June 10, 2010 , Az. 2 AZR 541/09, full text = NJW 2011, 167 = NZA 2010, 1227.