Dismissal on suspicion of fraudulently recording working hours

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Dismissing an employee on the basis of a strong suspicion may be justified if the individual in question is thought to have been inaccurately logging their working hours. That was the verdict of Mecklenburg–Western Pomerania’s regional labor court – the Landesarbeitsgericht (LAG) Mecklenburg-Vorpommern.

Work is becoming increasingly flexible thanks to arrangements such as flextime scheduling and the ability to work from home, none of which diminishes an employee’s obligation to work the hours agreed in their employment contract. On the contrary, keeping fraudulent records of the hours one has worked is a serious infringement that can potentially lead to termination of employment, notes commercial law firm MTR Legal Rechtsanwälte.

Under German employment law, an employer may be justified in dismissing one of its employees if it is strongly suspected that the latter has fraudulently recorded their working hours, meaning the employer would not be required to prove that this breach of duty had been committed. Case in point: a ruling of the LAG Mecklenburg-Vorpommern from March 28, 2023 (case ref.: 5 Sa 128/22). The court in that case held that where it is strongly suspected that an employee has kept false records of their working hours, this may justify their dismissal on personal grounds if the employee has in all likelihood been signing on to the timekeeping system from home despite not starting their work at the office until later.

The facts of the case were as follows: A supervisor had noticed that an employee who regularly worked at the office was often not at his workplace, even though this time was being logged as working hours. A subsequent review approved by staff representatives only served to confirm the suspicion that the employee had been manipulating the records of their working hours, signing on from home, and not coming into the office until much later. When confronted, the employee was unable to explain their absence despite the fact that this time was being recorded as working hours. This led the employer to issue them with a statutory dismissal notice.

The employee, who decided to challenge this decision, was ultimately unsuccessful with their claim for wrongful termination before the LAG Mecklenburg-Vorpommern. The court looked upon the employee’s fiddling of their working hours as such a severe breach of trust that it would have justified summary termination. Certainly, a warning would no longer have been sufficient.

While the judges did stress that there are significant hurdles to overcome for a dismissal on grounds of suspicion, they were convinced – by, among other things, the witness statements – that the threshold had been met in this case.

The court went on to state that employers need to be able to rely on employees documenting their working hours correctly, which is why German employment law deems attempts to tamper with the timekeeping system a severe breach of trust and hence a serious dereliction of duty. Lawyers who are well-versed in labor and employment law can advise on all things relating to termination and dismissal.

Those concerned should look no further than the legal experts at MTR Legal Rechtsanwälte.

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