Hearing on dismissal on suspicion during holiday

Facts of the case

A train conductor was suspected of sexual harassment, which came to the employer's attention on 27 April 2023. The employee was on rest leave from 25 April to 1 May and then on holiday from 2 to 21 May. It was not until 22 May, approximately one month after becoming aware of the allegations, that the employer heard the employee's side of the story. The employee responded on 30 May. After consulting with the works council on 2 June, the employer terminated the employment relationship without notice on 6 June 2023.

The decision

In the opinion of the Regional Labour Court, the termination is invalid because the notice period for termination (Section 626 (2) of the German Civil Code (BGB)) was not observed. Before terminating an employee on suspicion, the employer must hear the employee within a short period of time, which should not exceed one week as a rule.

If employees are on holiday, the period for consultation and declaration of extraordinary termination is not automatically suspended. Rather, the employer must actively endeavour to contact the employee. This applies in particular if employees are absent for a longer period of time, whereby, in the opinion of the LAG, an absence of more than three weeks is sufficient in any case. If the employer wishes to keep open the option of termination without notice, it must therefore contact employees while they are still on holiday and give them the opportunity to comment on the reasons for termination in a timely manner. Otherwise, it will miss the notice period for termination under Section 626(2) of the German Civil Code (BGB), rendering the termination invalid.

Consequences for practice

With this decision, the LAG clarifies the requirements for the hearing on suspicion and the notice period for termination under Section 626(2) of the German Civil Code (BGB). If a company is aware of a situation, it may not wait for employees to return from extended leave to clarify the facts and must give them the opportunity to comment during their absence.  In any case, companies must contact the employees concerned to clarify whether they wish to cooperate in clarifying the facts. Employees may not be referred solely to a written statement.

Practical tip

If misconduct is suspected, companies must immediately initiate measures to clarify the matter, even during longer periods of absence. This includes hearing the employees concerned. A longer absence is deemed to be when employees are absent for more than three weeks. The Lower Saxony Regional Labour Court (LAG Niedersachsen) (of 6 March 2001 - 12 Sa 1766/00) assumes that employees must be heard during their absence even if they are absent for only two weeks. According to the Düsseldorf Regional Labour Court (LAG Düsseldorf, 18 June 2019 – 3 Sa 1077/18), in the event of absence due to illness, an attempt to consult the employee must be made on the first day of absence. If employees say they can't comment because of their illness and the employer waits for them to get better, the Federal Labour Court says that there are usually special circumstances that mean the start of the period in Section 626(2) of the German Civil Code (BGB) can be put off for a longer time.

As a result, companies are well advised to conduct hearings regarding existing suspicions even during periods of absence.