The Hessian Regional Labour Court (judgement dated 29 August 2011 – 7 Sa 248/11) decided that an employee can also be declared the immediate termination of his employment relationship if he has been released from his employment duties until the end of the termination notice period or the agreed end of the employment relationship.

According to the underlying factual situation, the claimant had worked since October 2008 as a company account manager at a Düsseldorf bank, and since April 2009 had general power of representation ["Prokura"]. By cancellation agreement of 16 June 2010, the parties agreed to end the employment relationship as per 31 December 2010 and to release the claimant from his employment duties as of 1 July 2010 until the agreed termination date. On 29 and 30 June 2010 the claimant sent a total of 94 e-mails with ca. 622 megabytes in 1660 file attachments from his work e-mail mailbox to his private e-mail mailbox at The file attachments contained data relating to the customers handled by the claimant, documents in which the credit lines granted to an enterprise as well as loans taken out were listed, as well as risk analyses for various enterprises, credit agreements and other data subject to bank secrecy. On 7 July 2010 the defendant was informed of the data transfer by its data protection committee. On 20 July 2010 it terminated the employment relationship of the claimant without notice.

The Labour Court [Arbeitsgericht, AG] of Frankfurt am Main initially deemed the termination to be invalid, whereas the Hessian Regional Labour Court dismissed the case in the second instance. The decision is remarkable because, prior to declaring an immediate termination, one generally must make a prognosis as to how the employee will conduct himself in the future. In this case, the claimant argued that, due to the fact that he had been released from his employment duties until the agreed end of the employment relationship, the risk of repetition was virtually excluded since he would no longer be rendering any employment services for the defendant in any event, nor would he have access to protected data. The Hessian Regional Labour Court, however, felt that the trust placed in the claimant by the defendant had been so seriously breached by fact that he had taken secret bank data that one could not reasonably expect the defendant to adhere to the employment relationship and continue to pay his salary until the agreed end of the employment relationship.

The decision makes it clear that serious breaches of trust during garden leave certainly do justify the immediate termination of the employment relationship, even if a repetition is not to be expected because the employee concerned has been released from his employment duties. Although the garden leave can often be seen as the factual end of an employment relationship, the employee is nevertheless obliged to fulfil his contractual obligations which continue to apply until the date of the end of said relationship, with the result that serious breaches of trust most certainly also do permit the declaration of an immediate termination during this end phase of the employment relationship.

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