Termination for behavioral reasons
Under German law, employers with more than 10 employees (in any given business unit) may not dismiss staff at will. A layoff is legitimate if it is based on behavioural reasons, i.e. “breach of duty”. Admissible behavioural reasons are any serious breaches of duty that sufficiently impair the employer’s interests as to justify a termination. Note that behavioural reasons are always related to misconduct, fault and “culpability”: behaviours that are out of the employee’s control (e.g. coming late to work due to an accident) may never constitute a valid “behavioural reason” of termination. Example of conduct that can lead to dismissal: → Criminal actions or serious misbehaviour against the employer, colleagues, or customers (e.g. abuse) → Theft or fraud → (Sexual) harassment → Assault → Repeated late arrival at work → Repeated refusal to fulfil obligations from the work contract → Breach of confidentiality → Feigning illness Note: In most cases, a warning (Abmahnung) must be given upon the first incident. The warning should be given in writing (in order to be able to prove it) and must contain the indication that, upon renewed breach of duty, the employer may consider terminating. Only upon repeated (similar) misbehaviour, can a dismissal be considered. On the other hand, particularly serious incidents (e.g. theft of company property) can justify a dismissal without a previous warning.
Applicable notice period: minimum 1 month, increasing over time as of § 622 BGB.
Terminations for breach duty must carefully be built up in advance. In most cases they fail due to lack of a proper warning.