If money is missing or goods disappear, reasonable suspicion is often enough for immediate termination. German labor law thus violates a fundamental legal principle – the presumption of innocence. But the hurdles for termination on suspicion are high, and those affected definitely have a chance of successfully defending themselves.
The basics of termination on suspicion
The presumption of innocence is anchored in the European Convention on Human Rights, but it does not apply to labor law. Employers are allowed to terminate the contract if there is only suspicion of a serious breach of duty or criminal offense – no proof is required. According to the Westdeutsche Zeitung, Professor Michael Fuhlrott, a labor lawyer from Hamburg, explains the principle using a practical case: In the case of repeated thefts during the night shift, simply comparing the losses with shift planning can be sufficient if the crimes always occur when a specific employee is assigned.
Termination on suspicion is a special form of extraordinary termination according to Section 626 of the German Civil Code (BGB). Unlike dismissal, it is not based on proof of a breach of duty, but solely on the strong suspicion of serious misconduct. The suspicion must relate to a crime or a serious breach of duty; in practice, these are usually crimes at the expense of the employer or other employees.
Strict requirements and employee rights
Case law only allows dismissals on suspicion under strict conditions. The suspicion must be based on objective facts and must provide a high probability that the employee actually committed the breach of duty. Pure guesses or insinuations are not enough. As Till Bender from DGB Rechtsschutz GmbH emphasizes, the employer must specifically explain the objective facts that give rise to the urgent suspicion and prove them in the event of a dispute.
Before issuing a dismissal on suspicion, the employer must listen to the employee so that he or she can comment on the allegations and refute the suspicion. Without this hearing, the termination is disproportionate and ineffective. As with any termination, the works council must also be heard. Employers often issue several terminations at the same time – both a termination without notice and a dismissal on suspicion. Those affected must defend themselves against each individual termination by filing a dismissal protection lawsuit within three weeks.
The famous Emmely case as a turning point
The case of the cashier Barbara Emme, known as “Emmely”, had a lasting impact on the discussion about suspicious terminations. After more than 30 years of service, she was terminated without notice because she had redeemed two deposit vouchers worth 1.30 euros that belonged to a customer. The Federal Labor Court declared the termination in 2010 invalid – not because of a lack of evidence, but because a warning would have been sufficient as a milder means. This decision established the principle that a prior warning may be required for minor crimes, even if the offense has been proven. Even stricter standards apply to dismissals on suspicion in similar cases, which significantly improves the affected employees’ chances of success in court.
Dominik Maier, editorial team at finanzen.net
