- Formal Suspicion of Criminal Offences Is Not Sufficient For Forced Termination upon Suspicion
- May 27, 2013 | Author: Michael Rainer
- Law Firm: GRP Rainer LLP - Bonn Office
- An employer who wishes to terminate an employee on the grounds of suspicion of a crime must pay attention to the argumentation presented in the employment tribunal process.
GRP Rainer Attorneys and Tax Accountants in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg, Essen and London www.grprainer.com/en explain: According to the rulings of the German Federal Labour Court (BAG) a strong suspicion of a crime or other misconduct of the employee may be a valid claim to establish the circumstances necessary for extraordinary termination. However, it seems that not only the findings from the criminal investigation is not all that should be taken into consideration.
The German Federal Labour Court (BAG) has now decided in its judgment from 25 October 2012 (Ref.: 2 AZR 700/11) that a termination on the grounds of suspicion can not be based solely on the fact that law enforcement agencies have confirmed a strong suspicion of criminal offences. In the specific case, an employer, a state, was sued after the employee was terminated for cause. The reason given for this was due to the indictment brought by the public prosecutor against the employee for engaging in sexual acts with a minor engaging. Because of difficulties in obtaining proof, criminal trial proceedings, however, were not initiated against the employee.
Employers terminating because of a strong suspicion of criminal offence must set out specific facts in the proceedings before the courts for labor disputes such that permit immediate conclusion that the strongly suspected offence warrants effecting the termination of a particular employee. Although the employer may refer to the investigation findings of law enforcement, these must be presented explicitly as part of the court proceedings, at least by reference to them as such, as the assertions held by the employer. It is not sufficient to refer to the circumstance instead of the actual facts causing suspicion; law enforcement departments have also made suspicions of criminal offence.
In all legal issues pertaining to the employment contract, employees issued with warnings or notices of termination should consult with an attorney experienced in labour and employment law.