The Hessian State Labor Court had to decide in an appeal hearing whether a prison sentence to be served by an employee entitles the employer to terminate the employment.
The employee had been definitively sentenced to a two-year prison term for attempted robbery. However, the offense was unrelated to the employment relationship. Nevertheless, the employer terminated the employee's position as a baker upon the commencement of his imprisonment, intending to fill it with a new hire. The plaintiff challenged this termination by filing an action for protection against dismissal with the Wiesbaden Labor Court. The plaintiff argued that, given the favorable social prognosis, which anticipated a maximum imprisonment of two-thirds of the sentence, his employer should have kept his position as a baker open for him.
The action was dismissed by both the Wiesbaden Labor Court and the Hessian State Labor Court: It is consistent with established case law that an employer may issue a termination if, at that time, it is to be expected that the employee will be absent for more than two years. Bridging measures are not required, and the position may be permanently refilled. When the employee began serving his prison sentence, it was not definitively established whether he would serve his full sentence or, for instance, transition early to open prison. Developments during the period of imprisonment that occurred only after the termination are not relevant.
(highly condensed representation: Hessian State Labor Court, Judgment of november 21, 2017 – 8 Sa 146/17)
GoldbergUllrich Attorneys at Law 2018
Attorney Martin Wagner, LL.M. (Intellectual Property Law)
