Definition and legal classification of a suspicion-based termination
The suspicion-based termination is a special form of ending an employment relationship by the employer. It is not based on proven breaches of duty or criminal acts by the employee, but rather on a strong, objectively justified suspicion of serious misconduct. In German employment law, the suspicion-based termination is an exception to termination for personal, behavioral, or operational reasons and is subject to particularly stringent legal requirements.
Legal foundations of the suspicion-based termination
Starting point: General protection against dismissal
According to the Protection Against Dismissal Act (KSchG), the ordinary termination of an employment relationship is socially justified if it is made for reasons relating to the person, conduct, or operational requirements (§ 1 (2) KSchG). The suspicion-based termination is categorized under these types and constitutes a subtype of conduct-related termination, since it is generally based on serious suspicion affecting the trust relationship.
Fundamental requirements
Case law has developed strict principles for the permissibility of a suspicion-based termination. The central requirement is not proof of a breach of duty, but the existence of a serious suspicion that destroys or at least severely undermines the trust necessary for the continuation of the employment relationship.
Objectively justified suspicion
The suspicion must be based on concrete facts and be substantial. Mere assumptions, rumors, or unfounded allegations are not sufficient. The suspicion must be so serious that—when assessed objectively—it raises doubts about the employee’s integrity or reliability.
Serious breach of duty
The subject of the suspicion must be an act (e.g., theft, embezzlement, fraud, disclosure of trade secrets) which, if actually proven, would justify an extraordinary or ordinary termination.
Necessity of weighing interests
Within the context of a suspicion-based termination, a comprehensive balancing of interests must always be carried out. In particular, the seriousness of the suspicion, the extent of the impairment of the trust relationship, the duration of employment, the employee’s previous conduct, and the consequences of a possibly unjustified termination must be taken into account.
Employer’s duties to inform and clarify
Employee hearing
Before issuing a suspicion-based termination, the employer is obliged to hear the employee on the points of suspicion and allow them the opportunity to comment. This hearing serves to clarify the facts and provides the employee with the chance to refute the suspicion or resolve any misunderstandings.
If the hearing is omitted or not properly conducted, a termination based on it is regularly invalid.
Duty to clarify and investigate
The employer must take all reasonable and appropriate measures to clarify the facts. It is only when the suspicion cannot be resolved despite exhausting all reasonable measures that a suspicion-based termination may be considered.
Form and procedure of suspicion-based termination
Ordinary and extraordinary suspicion-based termination
A suspicion-based termination can be given as either an ordinary or an extraordinary (immediate) dismissal. For extraordinary dismissal, the requirements of § 626 BGB must be observed, particularly the existence of an important reason and compliance with the two-week cut-off period starting from knowledge of the facts relevant to the dismissal.
Involvement of the works council
If a works council exists, it must be properly consulted in accordance with § 102 BetrVG prior to issuing the dismissal. The employer must clearly inform the works council that it is a suspicion-based termination and communicate the factual basis of the suspicion.
Distinction from a fact-based termination
A fact-based termination is based on proof of an actual breach of duty, whereas a suspicion-based termination is based merely on the suspicion of such an act. The risk that the suspicion ultimately proves unfounded lies with the employer.
Subsequent developments and revocation of the suspicion-based termination
If, during the dismissal protection proceedings or afterwards, it transpires that the suspicion was not justified or could be dispelled, the suspicion-based termination is invalid. Reinterpretation as a fact-based termination is excluded, to the extent that the employer did not reference it as an alternative basis in the letter of termination.
Legal consequences and procedural aspects
Burden of proof in unfair dismissal proceedings
In the case of suspicion-based termination, the employer bears the burden of presenting and proving the existence of actual grounds for suspicion as well as the proper hearing of the employee. The employee, for their part, may attempt to refute the suspicion through their own statements or evidence.
Continued employment, severance, and references
If the court finds that the suspicion-based termination was invalid, the employee is entitled to reinstatement and to be issued a qualified work reference. In practice, amicable termination agreements and severance arrangements are frequently reached during unfair dismissal proceedings.
Suspicion-based termination in the public sector
In the public sector, suspicion-based termination is also possible according to the aforementioned principles and can likewise result in the loss of one’s position, as long as any collective bargaining or civil service special rules are observed.
Exclusion periods and specific formal requirements
A particularly short exclusion period applies to extraordinary suspicion-based dismissals (§ 626 (2) BGB). If this period is not observed, the dismissal is invalid regardless of the existence of suspicion.
Summary
Suspicion-based termination is a labor law instrument for terminating an employment relationship due to a serious, objectively justified suspicion against the employee. It is only permissible under strict conditions and only if the employee’s rights are fully safeguarded. Both the proper hearing and the careful establishment of the facts are central prerequisites for its validity. Legal review in unfair dismissal proceedings is comprehensive; the requirements for justification and procedure are high, since suspicion-based termination can, under some circumstances, have a substantial impact on the affected person’s career.
Frequently asked questions
What requirements must be met for a lawful suspicion-based termination?
For a lawful suspicion-based termination, case law in particular requires the existence of an objectively urgent suspicion of serious misconduct by the employee, capable of fundamentally undermining the trust relationship between employer and employee. Mere vague assumptions are insufficient; the grounds for suspicion must be based on concrete, verifiable facts and be serious enough that continuation of the employment relationship, taking into account all interests—including social concerns and the employee’s interest in continued employment—appears unreasonable. In addition, a prior hearing procedure is regularly required, during which the employee must be allowed to comment on the grounds for suspicion. Furthermore, no milder means than dismissal may be available (principle of ultima ratio). The employer’s duty to carefully clarify the facts remains; dismissal “in the dark” is not permitted.
Is a prior hearing of the employee absolutely necessary?
Yes, a prior hearing of the employee is absolutely necessary in the context of a suspicion-based termination. Case law emphasizes that dismissal can only be based on suspicion if the employee has previously had the opportunity to defend themselves or comment on the allegations. The employer must disclose to the employee all underlying grounds for suspicion and allow sufficient opportunity for a response. A violation of this hearing requirement regularly leads to the invalidity of suspicion-based termination, even if the suspicion itself is serious. The hearing must take place in an appropriate format and within a reasonable period; a formulaic or rushed hearing is not sufficient.
Does the works council need to be involved before issuing a suspicion-based termination?
If a works council exists in the company, it must be consulted prior to a suspicion-based termination as required by § 102 BetrVG. The employer must inform the works council comprehensively about the concrete grounds for suspicion leading to dismissal and must give the committee a reasonable period to comment. The dismissal facts and, in particular, the result of the employee’s hearing must be fully communicated to the works council. Failure to inform or insufficient information provided to the works council results in the invalidity of the dismissal. The participation rights of the works council apply to both ordinary and extraordinary suspicion-based dismissals.
Are there differences between ordinary and extraordinary suspicion-based terminations?
Yes, both ordinary and extraordinary dismissals can be issued as suspicion-based dismissals, but the legal requirements differ. In the case of extraordinary dismissal (§ 626 BGB), the suspicion must be so serious that immediate termination of the employment relationship—without notice period—is justified. This requires a particularly careful balancing of interests, as the consequences for the employee are more severe. In contrast, ordinary suspicion-based termination presupposes that the suspicion justifies conduct-based termination in accordance with the usual notice period. In both cases, the principle of ultima ratio applies, as well as the requirement for a thorough hearing and investigation.
What requirements does the case law place on the employer’s clarification of the facts?
The employer is obliged to undertake all reasonable and objective investigative measures before issuing a suspicion-based termination in order to review the grounds for suspicion. This includes collecting and reviewing relevant documents, questioning witnesses, evaluating technical records (such as video surveillance or electronic data), as well as interviewing the affected employee. All available evidence, both exculpatory and incriminating, must be reviewed. The duty to investigate does not require ‘over-investigation,’ but does include everything that a reasonable employer can and should undertake. If the employer neglects essential steps in the investigation or disregards exculpatory circumstances, the dismissal may be invalid for the sole reason that the facts were considered insufficiently clarified.
Can a suspicion-based termination be cured by subsequent facts?
The validity of a suspicion-based termination is judged exclusively on the basis of the circumstances known at the time the termination is issued. Facts or evidence that come to light later and further substantiate the suspicion or even lead to actual proof generally have no impact on the legal assessment of the original dismissal (principle of escalation at the time of the termination declaration). However, such facts discovered subsequently may be considered in the context of a new dismissal.
How should an employee behave in the event of a suspicion-based termination?
An employee who is threatened with or has received a suspicion-based termination should seek legal advice immediately. It is advisable to already respond to the allegations factually and completely during the hearing, and if necessary, present exculpatory facts and evidence. After receipt of the termination, the employee generally has three weeks to file a claim for protection against dismissal with the labor court (§ 4 KSchG). Support from the union or the works council can also be helpful. Access to all relevant documentation (e.g., investigation records) should be actively requested to enable an effective defense.
