Germany Update: Dismissal on Grounds of Suspicion – An Important Tool in Employment Law Practice

If there is a suspicion of a serious breach of duty or even a criminal offence committed by the employee, this can put a considerable strain on the employment relationship and, from the employer’s point of view, make a prompt termination of the employment relationship seem unavoidable. In such a case, the pronouncement of a dismissal on grounds of suspicion comes into consideration.

Background

Dismissal on grounds of suspicion is a special case of dismissal for personal reasons. It can be issued as both ordinary and extraordinary termination. The background to this is that the serious suspicion of criminal or grossly non-contractual conduct destroys the necessary trust in the person of the employee to continue the employment relationship on the part of the employer.

The risk of dismissal for an innocent person is inherent in a dismissal on grounds of suspicion. This is because the alleged conduct does not have to be definitively proven. For this reason, there are high requirements for the effectiveness and social justification of the dismissal.

Preconditions

The suspicion must be objectively based on certain facts which prompt a reasonable and fairly balanced employer to issue the dismissal; the subjective opinion of the employer, in particular mere conjecture, is not sufficient. Furthermore, there must be a strong suspicion, i.e. the circumstantial evidence must indicate a high probability that the dismissed employee has committed the criminal offence or breach of duty. In order to justify a termination of the employment relationship on grounds of suspicion, the misconduct of which the employee is suspected must be so serious that the employer cannot reasonably be expected to continue the employment relationship. These include, for example, betrayal of trade secrets, theft, assault or sexual assault.

The employer is not bound by the outcome of criminal proceedings when assessing the validity of the dismissal. Rather, as a further prerequisite for the social justification of the dismissal, he must have made all reasonable efforts to clarify the facts. Particular emphasis should be placed on the duty to hear the suspected employee and, in addition to making a statement, to enable him or her to refute the grounds for suspicion and to cite exculpatory facts.

According to the case law of the Federal Labour Court, a standard period of one week is provided for the hearing, whereby the type and extent depend on the individual case. At the hearing, the suspected employee must be sufficiently informed of the suspicion of the crime/conduct of which he or she is accused that he or she is in a position to submit a plea. In doing so, however, the employer must not give him the impression that he cannot avert the dismissal anyway. Whether the hearing takes place orally or in writing is irrelevant to its legality. The employee can regularly consult a works council member or a lawyer for support. If the employer culpably fails to attend the hearing, the dismissal is invalid due to a violation of the principle of proportionality. On the other hand, there is no obligation for the employee to cooperate in the clarification of the facts.

Result

The loss of trust in the employee from the employer’s point of view is a recognized reason for dismissal. However, the requirements for an effective dismissal on grounds of suspicion are rightly high. However, if the dismissal procedure is carried out carefully, a dismissal on suspicion can be enforced. In a difficult situation, it is often the only option left to the employer if he sees no possibility of continuing the employment relationship due to the suspicions in the room.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact germanylabor@transatlanticlaw.com

Disclaimer: Transatlantic Law International Limited is a UK registered limited liability company providing international business and legal solutions through its own resources and the expertise of over 105 affiliated independent law firms in over 95 countries worldwide. This article is for background information only and provided in the context of the applicable law when published and does not constitute legal advice and cannot be relied on as such for any matter. Legal advice may be provided subject to the retention of Transatlantic Law International Limited’s services and its governing terms and conditions of service. Transatlantic Law International Limited, based at 42 Brook Street, London W1K 5DB, United Kingdom, is registered with Companies House, Reg Nr. 361484, with its registered address at 83 Cambridge Street, London SW1V 4PS, United Kingdom.