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Termination due to Suspicion of a Criminal Offense

Requirements for the official hearing of an employee
Federal Labor Court, decision dated February 12, 2015 – 6 AZR 845/13

High demands have always been placed on terminating an employment relationship by an employer. This is especially true for so-called termination due to suspicion. Even the suspicion of a serious breach of duty can represent important grounds for an extraordinary termination of an employment relationship. A prerequisite is that the suspicion is supported by objective facts and that these suspicions destroy the trust necessary for the continuation of the employment relationship. There is a risk that the employee who will be terminated will be wrongly accused. Accordingly, the employer must make all reasonable efforts to clarify the underlying facts. This also means providing the employee with the opportunity to weigh in and comment on the allegations.

The Federal Labor Court has substantiated the requirements for such an official hearing of the employee in the decision discussed here - although in this case it concerned termination due to suspicion within the framework of an apprenticeship. A requirement for an effective official hearing of the employee is that it always refers to concrete, tangible facts. That the employee is already informed in advance about the content of the discussion is, however, not required. The reason is that otherwise there may be a risk of obfuscation by the employee. If the employee cannot make a statement during the discussion concerning the allegations, the official hearing is to be discontinued and a new date is to be set on short notice. The employee then has the opportunity, for example, to consult with a lawyer and/or view the necessary documents. This applies particularly to more complex issues, such as travel expenses or the suspicion of false expense claims. The involvement of a lawyer is possible. However, the employer does not have to point this out to the employee. In the event of a discontinuation of the hearing, a different approach should be taken. Here, the employer has to become active on his own if the employer recognizes that the employee cannot sufficiently make a statement without preparation. If the employee requires the consultation of a lawyer, the official hearing is also to be interrupted to accommodate that.

Practical Recommendations:
Claims for wrongful termination are often so successful because formal requirements for termination are not sufficiently taken into account. The official hearing of the employee should therefore proceed conscientiously before declaring termination due to suspicion, and the hearing should actually be considered part of the process of clarifying the facts. In addition, it is advisable to propose to the employee that the chairman of the works council participate in the hearing. This way, the works council has been informed of the content of the hearing and the employee’s statement of defense.

Tobias Grambow
Attorney and certified
specialist for labour law
Tobias Grambow

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