German employment law: In a recent case heard by an employment tribunal in Germany, the judges gave guidance on dismissal without notice in cases where employees are caught sleeping at work.
Dismissal without notice
The case concerned a residential care home employee who was fired for sleeping at work. The employee had worked for the residential home since 2003 in a night-shift role. Between 22 and 27 March 2010 the employee had been unable to work due to a lung infection.
The employee re-commenced her duties on 28 March 2010 and was entrusted with 29 residents and a specific residential area.
The residents had access to an emergency call button during the night. The alarm was both optically visible and could be heard from the duty office.
On the night of the 28th the employee completed all necessary rounds in accordance with the regulations. However, the employee was discovered sleeping in the recreation room twice by colleagues.
The employer reacted to the incident by dismissing the employee without notice.
The court of first instance found in favour of the employee. On appeal the judgment was reversed (12 Sa 652/11).
The appeal court determined that the employer had wrongfully dismissed the employee as the employer did not have a compelling reason in accordance with § 626(1) German Civil Code.
Although sleeping at work was abstractly capable of being a compelling reason and therefore forming the basis of dismissal without notice, the court ruled, after considering the facts of the case, that the dismissal was disproportional.
The judges held that the single incident of sleeping at work was insufficient to justify such a rash dismissal. Instead, the employer should have served warning on the employee. The court clarified that dismissal without notice should be used as a last resort and that, where appropriate, employees should be given the chance to change their behaviour.
In particular the court explained that dismissing an employee should not be used as a punishment, but as the expression of disapproval of particular conduct.
In the court’s opinion, the employer should have considered the special circumstances in this case. In particular, the fact that the employee was, according to her own admissions, especially weak and was still recovering from a lung infection should have been taken into consideration by the employer. Indeed, there was an extremely reduced risk that the extra-ordinary conduct would occur again.
The court also took the view that the employee had not planned to be permanently unavailable to the residents, mainly because she was relaxing in the recreation room which was opposite the duty office. The employee would therefore have been able to hear the alarm had it have sounded.
There was also no evidence that the employee had slept continuously.
This decision illustrates how seriously the employment tribunals take dismissal without notice. It makes clear that employers should give careful consideration to issuing employees with warnings before ending the employment relationship, especially if mutual trust between the parties can be restored.
It is always a question of degree as to whether dismissal without notice is a proportional reaction to an employee’s conduct.
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