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
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 gmx.de. 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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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