Termination on suspicion of a criminal offense (known as dismissal on suspicion) is only permissible under strict conditions in German labor law, but can have existential consequences for employees. In such cases, employees have important rights—in particular, the right to be heard, to have the facts of the case carefully investigated, and to defend themselves with an action for unfair dismissal.
What is dismissal on suspicion of criminal activity?
A dismissal on suspicion refers to a dismissal that is not based on a proven criminal offense or breach of duty, but rather on a strong suspicion that the employee may have committed a serious offense. It is a special form of extraordinary dismissal pursuant to Section 626 of the German Civil Code (BGB), but can also be issued as an ordinary dismissal if the requirements are met.
It is crucial that these are not mere rumors, but objective, verifiable facts that support the suspicion and significantly undermine the relationship of trust. Typical scenarios include suspected cases of theft, embezzlement, fraud against the employer, or serious breaches of trust in the handling of money or sensitive data.
Under what circumstances may an employer terminate an employee on suspicion?
A dismissal on suspicion is only effective if strict conditions are met, which have been specified by the Federal Labor Court over many years. These include in particular:
- There must be concrete facts that give rise to strong suspicion (e.g., video recordings, witness statements, documents).
- The suspicion must relate to a significant breach of duty or criminal offense that could permanently destroy trust.
- The employer must have taken all reasonable investigative measures, such as internal investigations, evaluation of documents, and questioning of witnesses.
- The employee concerned must be heard and confronted with the allegations before the termination is announced.
- The termination must be proportionate; milder measures such as a warning or transfer must not be sufficient.
If one of these conditions is not met, dismissal on suspicion is generally invalid and can be successfully challenged before the labor court.
What rights do employees have during ongoing preliminary proceedings?
Even before a termination is announced, employees have important protective rights. They do not have to answer every question asked by their employer, but they should take the opportunity to refute the suspicion if they are able to do so.
Key rights are:
- Right to be heard: Before terminating an employee on suspicion of misconduct, the employer must specify the allegations and allow the employee to respond.
- Right to know the grounds for suspicion: The employee must know what the suspicion is based on in order to be able to defend themselves properly.
- Right to assistance: Employees can be accompanied during discussions by works council members or a labor law attorney, for example.
- Right to data protection and personal rights: Investigative measures taken by the employer (e.g., video surveillance) must be lawful; inadmissible evidence may be unusable in court.
An example: If a cashier is suspected of alleged cash register manipulation, the employer may not simply terminate the employee's contract without a hearing, but must check the entries, question witnesses, and give the employee the opportunity to explain themselves.
How quickly must the employer act?
In the case of dismissals on suspicion, the employer may not wait indefinitely after becoming aware of the relevant facts. In the case of extraordinary dismissal, a short period of approximately two weeks after the final clarification of the essential circumstances is usually decisive, because Section 626 of the German Civil Code (BGB) requires a "reasonable" decision period.
In addition, the employer must investigate the matter promptly and hear the employee's side of the story in a timely manner; excessive inaction may be a sign that the suspicion was not considered particularly urgent. If the internal investigation drags on for months without any comprehensible reasons, the employee's chances of success in a subsequent unfair dismissal lawsuit increase.
What role does the presumption of innocence play in labor law?
The presumption of innocence in criminal law ("in case of doubt, in favor of the defendant") does not apply with the same strictness in labor law. An acquittal in criminal law therefore does not automatically protect against consequences under labor law, because different assessment criteria apply here.
In labor law, an urgent suspicion based on facts is sufficient if it undermines trust to such an extent that it becomes unreasonable for the employer to continue the employment relationship. Nevertheless, the suspicion must not be based on rumors or mere assumptions; it must be objectively comprehensible and carefully examined.
How can you defend yourself against dismissal on suspicion?
Employees can take legal action against dismissal on suspicion of misconduct—as they can against any dismissal—by filing an action for unfair dismissal. This action must be filed with the competent labor court within three weeks of receipt of the notice of dismissal (Section 4 of the German Unfair Dismissal Protection Act (KSchG)). If the deadline is missed, the dismissal is generally considered valid, even if it was actually unlawful.
In such proceedings, the employer must present and prove the facts that give rise to the urgent suspicion and explain the steps taken to investigate the matter. The court then examines whether the strict requirements for dismissal on suspicion have been met, whether the employee was given a fair hearing, and whether it would have been reasonable to continue the employment relationship.
What practical steps should those affected take immediately?
Anyone who receives a dismissal on suspicion of misconduct should respond quickly and in a structured manner. The deadlines are short, and mistakes often cannot be corrected later.
Important immediate measures:
- Keep the notice of termination and the envelope (because of the date of receipt, which is important for the three-week period).
- Seek legal advice quickly, ideally from a lawyer specializing in labor law.
- Have it checked whether an action for unfair dismissal is advisable and submit it to the labor court in good time.
- Save your own documents (contracts, warnings, emails) that may contribute to your defense.
- Do not sign any hasty termination agreements before the legal situation has been clarified.
In many cases, early legal advice can help to assess the risk of litigation, avoid mistakes, and, if necessary, negotiate an amicable solution, such as a severance payment.
Are there differences between dismissal for cause and dismissal on suspicion?
Yes, labor law distinguishes between dismissal for cause and dismissal on suspicion.
- In the case of dismissal for misconduct, the employer assumes that the breach of duty or criminal offense has been proven; the dismissal is based on the actual act.
- In the case of dismissal on suspicion, the decision is based on strong suspicion that is not fully proven but is based on concrete facts that weigh heavily against the employee.
In practice, several notices of termination are often issued in parallel (e.g., termination without notice on suspicion of misconduct, ordinary termination for cause), against each of which a separate action for unfair dismissal must be brought. If the employee fails to challenge even one of these notices of termination, it can take effect despite the lack of evidence of misconduct.
What consequences does dismissal on suspicion have for severance pay and future career prospects?
In Germany, whether severance pay is paid usually depends on negotiations or a court settlement; there is no automatic legal entitlement. However, in cases of dismissal on suspicion of misconduct, employers are often willing to pay severance pay as part of a settlement in order to avoid the risk of litigation and negative publicity.
A dismissal on suspicion can be problematic for your future career, as it often damages your reputation. This makes it all the more important to carefully check your employment reference and, if necessary, have it corrected so that it does not contain any hidden references to alleged criminal offenses. A successful unfair dismissal lawsuit can also result in the employment relationship continuing or at least create a better negotiating position for an amicable separation with appropriate severance pay.
Conclusion
Dismissals on suspicion of criminal activity have a profound impact on employees' professional and personal lives and are only permissible under strict legal conditions. Employees have extensive rights: they must be heard, are allowed to defend themselves against the allegations, and can have the validity of the dismissal reviewed in court within three weeks by filing an action for unfair dismissal.
Anyone affected by dismissal on suspicion of misconduct should not fail to make use of the legal options available to them. They should seek expert advice from a labor lawyer at an early stage and examine their chances of continued employment or a fair severance payment. This will enable them to protect their rights and set the course for their future career.
