11. Oct 17

BAG: Dismissal with immediate effect on account of sexual harassment

Reaching into a work colleague’s personal space can justify dismissal with immediate effect, even if the act was not sexually motivated. That was the verdict of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court (Az.: 2 AZR 302/16).

We at the commercial law firm GRP Rainer Rechtsanwälte note that it is possible having regard to all of the circumstances of a given case to exceptionally terminate an employment contract with immediate effect if there is good cause for doing so. One example of what constitutes good cause justifying dismissal with immediate effect is sexual harassment in the workplace, even if the act was not sexually motivated. That was the decision of the Bundesarbeitsgericht in its ruling of June 29, 2017 (Az.: 2 AZR 302/16).

In the instant case, a worker had painfully grabbed a colleague from a temporary employment agency between the legs from behind and then made remarks. The employer subsequently decided with the works council’s involvement to issue notice of dismissal with immediate effect and, in the alternative, ordinary notice of dismissal. While the worker’s action for wrongful dismissal was successful before the Landesarbeitsgericht (Regional Labour Court), the BAG took a different view on the matter as the court of highest instance, ruling that intentionally touching a colleague’s personal space always constitutes sexual harassment. The judges went on to say that it does not matter whether the act is sexually motivated, because sexual harassment is often about expressing hierarchies and exercising power and less frequently driven by sexual desire. The BAG held that dismissal is justified in these kinds of cases.

The Landesarbeitsgericht must now revisit its decision regarding whether the dismissal was effective. It needs to clarify taking into account all of the circumstances of the case in question whether the employer can be expected to continue the employment relationship at least until the next possible termination date under ordinary dismissal. It may be the case that a formal warning would have sufficed to influence the relevant employee’s behaviour such that he would not have violated his contractual obligations going forward.

Whether exceptional notice of dismissal is effective is a decision that is always made on a case-by-case basis, with respect to which the labour courts must weigh up the interests of the respective parties, thus making it all the more important for employers to carefully prepare notices of exceptional dismissal. Lawyers who are experienced in the field of employment law can advise employers on matters pertaining to dismissal as well as in relation to other legal issues.

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