Employees in prison: Effective termination depends on the length of imprisonment

If an employee is sentenced to a prison sentence of three years and three months, his employer can therefore terminate the employment relationship with him for personal reasons. This emerges from a ruling by the Stuttgart Labor Court, in which an assembly worker’s claim for protection against dismissal was dismissed. According to the chamber, termination in this case is “socially justified” within the meaning of Section 1 Paragraph 2 KSchG.

The trial involved a man who had been employed by a collectively agreed automobile manufacturer since May 2018. After he was sentenced to a total prison sentence of 39 months and began his imprisonment on January 13, 2025, the company gave him proper notice of termination at the end of June 2025 in a letter dated January 22, 2025.

The employee took action against this because he considered the termination to be ineffective: he had always openly informed his employer about the prison sentence imposed.

A milder remedy than termination possible?

In addition, according to his argument, his absence does not lead to any significant disruptions to the company’s operations, since as a “first serve” he can probably return to the company as a free worker before the end of two years and a suspension of the employment relationship is possible as a milder remedy than termination. The works council also pointed out such “staff retention” in the termination hearing. His job therefore does not have to be filled on a temporary basis in the meantime (for no reason). Instead, “bridging through temporary employment” is possible. Therefore, his interest in employment “clearly” outweighs the company’s interest in termination.

A workplace doesn’t have to be kept free forever

However, he was not heard before the Stuttgart Labor Court. This emphasized – based on the relevant case law of the Federal Labor Court (BAG, judgment of November 25, 2010, Ref. 2 AZR 984/08) – that being unable to work due to a criminal or pre-trial detention is generally one of the personal reasons for dismissal. Whether these are sustainable depends on the length of the sentence and the circumstances of the individual case.

And here a termination is indeed legal. The chamber literally: “In any case, if the employee still has a prison sentence of more than two years to serve at the time of termination and it is not certain that he will be granted free status or will be released early from prison before the end of two years, the employer does not have to keep the job free for him.”

Employers must be aware of the risks of working on leave

In addition, according to the judges, the man would not have been able to return until March 12, 2027 at the earliest – and therefore only two years and two months after receipt of the dismissal – even if he had been released after serving two thirds of the sentence (Section 57 (1) StGB). “Given the circumstances of the case, it was unreasonable for the defendant to keep the workplace free,” said the court. In view of the remaining sentence of more than 24 months, there is no longer any need to demonstrate specific operational disruptions. However, a conviction of more than two years in prison “does not automatically and inevitably” lead to a termination being effective. What is more important is “whether the employer can reasonably be expected to take bridging measures”. To do this, it must first be clear “whether and when the plaintiff could take up external employment”.

However, that is not the case here because the plaintiff cannot under any circumstances be confident that he will be released early as a prisoner. He did present an enforcement plan that attested to a problem-free execution process, a good work assessment and a processing of the crime. However, it was only created after the notice period had expired.

However, there is also a problem with regard to any bridging measures in terms of transparency: the man did not disclose the circumstances of his crime and did not allow the employer to see the criminal verdict despite repeated requests. However, this eliminates the employer’s possible obligation to help obtain exempt status: “In order to be able to assess the risk of employment within the scope of exempt status, the employer must know what offense the employee was convicted of.”

Termination interest weighs more heavily

The final balancing of interests in the process was therefore to the plaintiff’s disadvantage. The man has seven years of service with the company without any problems. “Nevertheless, the defendant’s interest in termination prevails. The plaintiff is responsible for his own failure.”

The fact that the termination was given “almost immediately after starting prison” does not change this, which is why the employee had “no chance” to “prove himself in prison in such a way that at least a short-term employment in released status would have been considered.”

This means for human resources departments: If it is to be expected that the employee will be able to return after less than two years, for an effective termination to be effective, it must be explained that and how, if necessary, business operations will be disrupted.

Frank Strankmann has been an editor for human resources management for many years. 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.