Germany: Dismissal On Grounds Of Suspicion

Last Updated: 30 July 2013
Article by Georg Mikes

In past years, case law has increasingly dealt with a special form of termination that is largely unknown to the wider public and seldom considered by human resources departments: dismissal on grounds of suspicion.

The Nature of Dismissal on Grounds of Suspicion

In this form of termination, an employee (or a board member such as a managing director or management board member) may be dismissed on grounds that he or she is under suspicion of having committed a serious breach of duty. In many respects, dismissal on the grounds of mere suspicion seems odd, because the dismissed employee may turn out to have been innocent of the allegation. Nevertheless, as grounds for dismissal, suspicion ranks equally with a proven offense. This leads to the core problem pertaining to dismissal on grounds of suspicion: weighing the employee's need to be protected from unjustified accusation and dismissal against the employer's need to facilitate termination of employment when the type and seriousness of the suspected offense make it impossible for the employee to be trusted, even if it is theoretically possible that he or she is innocent. How justice can be achieved in such a case amounts almost to a philosophical question.

Nevertheless, one thing is for sure: this form of termination constitutes a special form of dismissal on grounds of conduct. It usually takes the form of dismissal without notice, and in most cases, an accusation relevant under criminal law has already been made. However, the Federal Labor Court (Bundesarbeitsgericht ; BAG) has emphasized that the deciding factor is not whether a criminal offense has been committed, but whether there has been a violation of a "contractual primary or collateral duty" (BAG, judgment dated June 21, 2012, 2 AZR 694/11—a case, ironically, that dealt with bribery, i.e., a criminal offense).

The Particularities of Dismissal on Grounds of Suspicion

To protect employees against reckless suspicion, the court has held that any suspicion must be strong. This elusive criterion, for which the employer bears the full burden of proof, often causes interpretation problems in practice, since an employer that is certain of its employee's guilt can simply dismiss the employee without notice on grounds of offense. (If the incident under suspicion can realistically be explained just as well by factors that would not justify termination, the dismissal will be invalid (BAG, judgment dated June 21, 2012, 2 AZR 694/11).) In particular, a potential indictment by the public prosecutor's office, the institution of main proceedings, and/or a possible conviction would support the employer's position. At least in the latter case, the employee might as well be terminated on grounds of offense, even if the conviction was made in a trial based on circumstantial evidence.

In contrast to dismissal on grounds of offense, dismissal on grounds of suspicion requires a prior hearing for the employee concerned. In the hearing, it is important for the employee to be confronted with the substantiated criminal charge, because he or she must have the opportunity to respond with a substantiated statement; assessments or overly general accusations are not sufficient. However, the employer is not required to produce evidence or introduce witnesses for the prosecution, and indeed, no formal criteria therefor have been established under case law. Thus, in a recent case in which the employee opted not to make a verbal statement, the BAG did not fault the employer for failing to submit a list of questions in advance or to set a one-week time limit for the submission of a statement (BAG, judgment dated May 24, 2012, 2 AZR 206/11). The BAG did not even require the employer to state explicitly that it planned to terminate the employee; however, the court did hold that any threat to ongoing employment must be recognizable.

The employee, in turn, is not required to submit a statement, but the employer's suspicions are likely to increase if the employee fails to do so or if he or she makes only a general statement (i.e., if the employee categorically rejects the accusation without providing details), despite being confronted with substantiated facts that he or she could address in a more substantiated manner.

Beginning of the Period During Which the Employee May Be Terminated

If the employer considers dismissal without notice on grounds of suspicion, the provisions are basically identical to those for dismissal on grounds of offense: the employer may dismiss the employee without giving notice within two weeks of having learned of the relevant facts (Section 626 Para. 2 of the German Civil Code). In this respect, case law concedes a considerable scope of discretion to the employer. As long as the employer observes the two week period, it may, for instance, terminate the employee after the hearing, which usually concludes the employer's own investigations (with the employer determining for itself when it has obtained sufficient evidence of wrongdoing). Alternatively, the employer may await the result of an investigation by the public prosecutor's office, indictment before the criminal court, or even the institution of main proceedings. According to case law, there may be several points in time when a corresponding period starts to run (e.g., after the hearing of the employee, upon the employee's indictment by the prosecution, or upon the criminal court's acceptance of the indictment), and against this background the employer is allowed to serve another termination letter, as the bringing of a criminal charge is recognized as a way of "strengthening the suspicion" (BAG, judgment dated January 27, 2011, 2 AZR 825/09).

Considerations of Procedural Tactics

According to the foregoing, in many cases it may be reasonable for the employer to exercise the option of serving another termination letter. Furthermore, there may be cases in which the employer actually considers the commission of the offense to have been proved but, as a precaution, intends additionally to dismiss the employee on grounds of suspicion. This is possible in principle, but it may involve additional challenges, since commission of an offense and suspicion thereof are formally deemed to be different reasons for termination.

In such cases, if a works council exists, it must be heard with respect to dismissal on both grounds. In addition, with regard to dismissal on grounds of suspicion, the works council must be informed about the statement submitted by the employee during his or her hearing—which can necessitate a separate timeline. Depending on the circumstances, the employer may wish to hear the employee with respect to the potential termination on grounds of offense so that synchronization of dismissal on either ground may be procured. After all, employers do not have to worry that dismissal on grounds of suspicion might have been the wrong choice if it is almost certain that the employee has committed the offense, as case law assumes that the two dismissal options do not coexist without connection.

If the court is convinced of the commission of the offense, it will consider dismissal on grounds of suspicion to be effective. However, the other prerequisites in this regard must be satisfied. For instance, it would be fatal for the employer if the employee committed the offense and the court was convinced thereof, but the employer dismissed the employee only on grounds of suspicion—without the required hearing.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions