Ever since the so-called bee sting case, it has been clear that even the theft of small amounts of cents can lead to dismissal without notice. A sales clerk ate a piece of bee sting worth around 30 cents and promptly lost her job.
Embezzlement, assault or insults are also not uncommon phenomena in the workplace.
But what is the legal situation if there is only a suspicion that the employee has stolen - without any evidence? This can happen quickly if, for example, money or goods that fall within the area of responsibility of a particular employee disappear.
Extraordinary termination in the form of termination on suspicion
The bad news is that the employer can also issue an extraordinary dismissal in accordance with Section 626 (1) of the German Civil Code (BGB) on the mere suspicion of a criminal offense. This is because the decisive factor is not whether the suspicion later turns out to be true. The decisive factor is that the mere suspicion of a criminal offense is sufficient to destroy the necessary trust in the honesty of the employee.
However, no one should actually be "punished" by the legal system for something that they have not actually done. The good news is therefore that there are high requirements for such a dismissal on suspicion and in many cases this dismissal is invalid and therefore contestable.
What the employer must observe in the event of a suspected dismissal
In order for the employer to effectively terminate the employment contract without notice, at least the following criteria must be met:
- There must be a strong suspicionagainst the employee, i.e. mere vague suspicions are not sufficient. Rather, facts must be presented that substantiate the high probability that the employee has acted in breach of duty and would have violated a criminal law if the suspicion were correct.
- The employer also has a certain duty of investigation before issuing a dismissal on suspicion. It is up to the employer to substantiate the suspicion on the basis of valid evidence or to dispel it. This also includes hearing the employee about the allegations made against them. If the person concerned has not been given the opportunity to comment, a dismissal on suspicion is generally invalid.
- If there is a works council in the company, it must also be consulted after the employee's statement on the suspicious facts. It is important that the hearing of the works council only takes place after the hearing of the suspected employee, as otherwise relevant information could be withheld from the works council.
- Finally, as soon as there is a suspicion, the employer has only two weeks to issue a notice of termination - verbal termination is not sufficient.
So there are a lot of sources of error when it comes to dismissal on suspicion. And that's a good thing, because employees should not become victims of unjustified suspicions.
If there are errors, a suspected dismissal can be countered with an action for unfair dismissal.
Severance pay is also possible retrospectively
If the suspicion is confirmed, the employee should definitely try to apologize to their former employer. After all, the employer will issue an employer's reference and may also file a criminal complaint - in which case there is also a risk of unemployment benefit being suspended.
If, on the other hand, it turns out afterwards that the suspicion was unfounded, the employee may even be entitled to reinstatement or a corresponding severance payment.
Although the latter is more advisable in the vast majority of cases. Because even if a suspicion can be cleared up later, the necessary mutual trust is usually shattered - even if it was just a bee sting.
If you have been dismissed on suspicion of a criminal offense, or if you fear that you may be dismissed on suspicion, we will be happy to advise you on how to proceed.
