LAG Hamm: Dismissal on grounds of suspicion must comply with strict requirements
If an employer wants to issue notice of dismissal on grounds of suspicion, the circumstances need to be sufficiently suspicious such that it is almost certain the employee in question committed the relevant offence.
For extraordinary notice of termination of an employment relationship to be effective, there needs to be good cause justifying this course of action. We at the commercial law firm GRP Rainer Rechtsanwälte note that suspicion an employee has committed a serious breach of duty can constitute good cause justifying extraordinary dismissal. Having said that, the circumstances need to be sufficiently suspicious such that it is virtually certain the employee is the perpetrator based on the objective evidence available. That was the verdict of the Landesarbeitsgericht (LAG) Hamm [Regional Labour Court of Hamm] in its ruling of August 30, 2016 (Az.: 7 TaBV 45/16).
The case that came before the LAG Hamm concerned a particularly distasteful form of bullying. An employee at a senior citizens” centre discovered a letter of condolence in her mailbox that included the handwritten comment “für Dich (Du bist die nächste)” [for you (you“re next)]. Upon learning of the incident, the employer attempted to identify the culprit responsible for the letter. To this end, it collected handwriting samples from those employees it considered might be responsible. Based on these handwriting samples, an expert concluded that it was “highly probable” the letter came from a longstanding employee. Notwithstanding this, the expert pointed out that beyond this there are also the categories of probability “very likely” “virtually certain”. Despite this, the employer still intended to issue the relevant employee with notice of extraordinary dismissal on grounds of suspicion.
However, neither the works council nor the labour court of first instance approved the employer”s grounds for suspicion. The LAG Hamm upheld the judgment of the court of first instance, ruling that a suspicion has to be strong and supported by concrete evidence; mere speculation does not constitute sufficient grounds for suspicion. The circumstances need to be sufficiently suspicious such that it is virtually certain that the employee is the perpetrator and other parties can be ruled out. But the Court held that this was not the case here, stating that the assessment “highly probable” is not enough and not a clear result, especially considering that further enquiries could have been made, e.g. collecting handwriting samples from all employees.
Extraordinary notice of dismissal, particularly on grounds of suspicion, should always be thoroughly prepared. Lawyers who are experienced in the field of employment law can offer advice.
GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.
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