The Hesse Regional Labour Court had to decide in an appeal hearing whether a custodial sentence to be served by the employee entitled the employer to terminate the employment contract.
In this case, the employee had been sentenced to two years imprisonment for attempted robbery. However, the offence had no connection with the employment relationship. The employer nevertheless terminated the employee's employment as a baker when he went to prison in order to fill the position. The plaintiff initially appealed against this dismissal to the Wiesbaden Labour Court. The plaintiff was of the opinion that his employer had to keep his job as a baker free due to the favourable social prognosis, which assumed that he would serve a maximum of 2/3 of his sentence in prison.
The action was dismissed by both the Wiesbaden Labour Court and the Hesse Regional Labour Court: It was in line with established case law that an employer may give notice of dismissal if at that time it was to be expected that the employee would be absent for more than two years. Bridging measures were not necessary, the job could be permanently filled. When the employee began his prison sentence, it was not certain whether he would serve his sentence in full or, for example, switch to open prison at an early stage. Developments during the term of imprisonment that only occurred after the dismissal were not significant.
(strongly abbreviated: LAG Hessen , Judgment of 21.11.2017 - 8 Sa 146/17)
GoldbergUllrich Attorneys at Law 2018
Attorney at Law Martin Wagner, LL.M. (Intellectual Property Law)
