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BAG makes a decision in cases of termination on grounds of suspicion

The dismissal of an employee on grounds of suspicion had been decided in the judgment dated 25 October 2012 (Ref.: 2 AZR 700/11) by the German Federal Labour Court (BAG).

GRP Rainer Attorneys and Tax Accountants in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg, Essen and London explain: A termination on the grounds of suspicion is a notice of termination that can be issued to the employee by the employer. However, this can only be done if the employer suspects that the employee has committed a criminal offense.

The BAG was confronted in the present case with the fact that an employee was making a complaint against a federal state as his employer. The employee was suspended by his employer after it was announced that a criminal investigation was launched against the employee and legal proceedings were also pending against him. Later it was determined that there were no grounds for commencement of the trial due to a lack of evidence. Nevertheless, the notice to the employee had been issued.

The lawsuit filed with the BAG by the employee was supposed to have been rejected. The court justified its decision by redressing to the principle possibility of issuing a notice termination on the grounds of suspicion. According to the court, such distress brought by strong suspicions, were also likely to undermine the trust between employer and employee. It was also considered to be the employer’s duty to take assume all possible efforts in order to clarify the facts.

In point of fact, the BAG held that the employer must prove suspicion in the context of the facts at issue on which the grounds for suspicion are based. It is also necessary that such a serious level of suspicion be present such that the suspicions are near to being confirmed. The criminal findings are, however, irrelevant as to the adjudication of the termination. In this specific case, the federal state could not provide such a level of proof.

employment termination germany
In all legal issues relating to the employment contract, employees impacted by warning notices or notices of termination should consult with a lawyer experienced in labour law. In legal matters concerning labour law, short deadlines should be expected.

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