Dismissal for behavioural reasons: When is it permissible?

Conflicts occasionally arise in the world of work that can lead to dismissal for behavioural reasons. But when is such a dismissal legal and what should you do if you are threatened with such a dismissal or have already been dismissed?

What is a behavioural dismissal?

Dismissal for conduct-related reasons can be pronounced if an employee's behaviour causes lasting disruption to the peace in the company, breaches their duties or breaks down the relationship of trust. This is a serious, culpable breach of duty that must be proven to the employee.

Examples of grounds for dismissal for behavioural reasons

The reasons for dismissal for misconduct can be divided into three categories:

Disturbances in the power rangeThis includes behaviour that impairs the fulfilment of contractual obligations. Example: Siegburg Labour Court, judgment of 25 August 2017, Ref. 3 Ca 1305/17 - poor work performance.

Disturbances in the area of trustThis refers to actions that destroy the necessary relationship of trust with the employer, such as fraud, theft or suspicion of a criminal offence. Example: „Emmely case“, BAG, judgement of 10 June 2010, Ref. 2 AZR 541/09 - Theft of empties vouchers.

Disruptions to operational order: Such disturbances relate to behaviour towards colleagues and customers, such as bullying or alcohol abuse in the workplace. Example: LAG Saxony-Anhalt, judgement of 27 January 2000, Ref. 9 Sa 473/99 - Bullying against colleagues.

Warning letter

As a rule, a warning is required before a behavioural dismissal can be issued. The warning must precisely describe the incorrect behaviour, clarify the consequences if it is repeated and give the employee the opportunity to change their behaviour. The Oldenburg Labour Court ruled that a warning issued to a head of a public service department for unfounded accusations of harassment against the mayor was invalid. The allegations were not sufficiently substantiated, which is why the warning was deemed disproportionate.

Frequent mistakes when giving notice of dismissal for behavioural reasons

One of the most common mistakes made when dismissing employees for misconduct is the lack of appropriate documentation or a prior warning. Insufficient evidence of the employee's misconduct is also problematic. Errors in the wording of the dismissal or insufficient consideration of the employee's individual circumstances can also lead to legal problems.

Summary and recommendations for action

It is advisable to seek legal advice if you are threatened with or have been dismissed for misconduct. A specialised lawyer can examine the legal situation and recommend appropriate measures to protect your rights. Every situation requires individual consideration in order to find a legally sound solution. Understanding the complex legal framework and the latest case law is crucial in order to be able to respond effectively to dismissals for misconduct. We will be happy to advise you on dismissals and other labour law issues at our offices in Sulingen, Bremen, Osnabrück or online. Get in touch with us!