Dismissal on suspicion: Employer must disturb employees on vacation

If an employer plans to terminate an employee without notice because of strong suspicion of a serious breach of duty, he must hear the employee concerned about the allegations. According to a recent ruling by the Federal Labor Court (BAG), this must be done promptly – even if the person concerned is on vacation for a long period of time. Otherwise, a termination given later may be invalid.

What was it about?

The bone of contention was a situation on an ICE trip on April 24, 2023: At that time – at least that’s what the employer claimed – the employee, who works as a train manager for the railway operator, was said to have sexually harassed a colleague. He denied this. When the company learned of the allegations on April 27, the man was off duty. He already had approved vacation from May 2nd to 21st, 2023. Important to know: Due to his age and length of service, the employee could no longer be properly terminated according to the collective agreement.

Only after he returned did the employer confront him in writing with the suspicion on May 22nd and summon him to a personnel interview the following day. In addition to the plaintiff and his superior, a works council member also took part. Since the platoon chief only wanted to comment on the events in writing, he was given a deadline of May 30, 2023. In his statement, he rejected the allegations and emphasized that he had nothing to blame. An investigation that was later initiated against him was closed by the public prosecutor.

Nevertheless, the employer subsequently consulted the responsible works council and, in a letter dated June 6th, terminated the employee without notice and “alternatively, extraordinarily with a social expiry date of December 31st, 2023”. The receipt of the termination is undisputed.

Hearing: When does the deadline begin?

The man took action against his dismissal and was proven right in all instances: the dismissals were legally invalid because the employer had not met the deadline for notice of dismissal in accordance with Section 626 Paragraph 2 of the German Civil Code (BGB). The reasons given by the State Labor Court (LAG) of Baden-Württemberg are particularly informative.

In it, the chamber primarily addressed the question of when the two-week period that applies to termination without notice for good cause in accordance with Section 626 Paragraph 2 Sentence 2 of the German Civil Code (BGB) actually begins to run. And according to the judges, this happens “at the point in time at which the person entitled to terminate the contract becomes aware of the facts relevant to the termination.” Those that are relevant are those “that enable him to decide whether he should continue the employment relationship or not”.

However, if an employer wants to clarify the matter further before giving notice of termination and ask the employee about the allegations, this does not automatically stop the deadline. According to the LAG, what is more important is how quickly it proceeds: “If the person opposing the termination is to be heard, this must be done within a short period of time. In general, this may not be more than a week and may only be exceeded in the presence of special circumstances.”

Are there exceptions to vacation absence?

Contrary to what the employer claimed in the trial, from the court’s point of view, the defendant’s vacation-related absence was not an exceptional reason that delayed the expiry of the deadline. Making contact while on vacation is an interference with the right to relaxation and potentially stressful. But these are also the allegations that are in the air. In addition, a person affected may have “a strong interest in a timely clarification of the facts that will lead to their exoneration”. In this respect, the company was “required to contact the plaintiff while he was on vacation.” In the present case, however, the company did nothing for almost a month and had to bear the consequences.

According to the LAG, due to “simple inaction on the part of the employer”, the deadline in this case had already expired and the termination was therefore ineffective. Although the LAG had allowed an appeal to the BAG due to the fundamental importance of the legal question, this was rejected according to a statement at the end of 2025.

Frank Strankmann is an editor and writes offline and online. His focus is on the topics of labor law, co-determination and regulation. He is also responsible for other projects for media brands from FAZ Business Media GmbH.