If employees violate their employment contract obligations, disrupt company peace or commit a serious breach of trust at work, the employer can dismiss them due to conduct. But only under certain conditions. Employers and HR managers should therefore be aware of the most important pitfalls of behavioral dismissal and, above all, know how to avoid them.
In this article, we deal with the topic of behavioral termination. We show which reasons can justify a behavioral dismissal, what must precede it and what employers or HR professionals must pay attention to.
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What is a behavioral termination?
Employers may terminate an employment relationship due to conduct if an employee violates his obligations under the employment contract through deliberate misconduct. Behavioral dismissal therefore presupposes that the person concerned has not fulfilled their employment contract obligations, although they would theoretically be able to do so. It is therefore about behavior that can be influenced. However, this does not only apply to the contractually agreed work performance. An employee also has certain duties of care and loyalty towards the employer and, for example, must not intentionally disrupt business processes through his conduct.
But beware: Not every misconduct warrants dismissal. In order to end an employment relationship for behavioral reasons, there are therefore strict criteria, which we will discuss below. In addition, the burden of proof lies with the employer. In the event of a dispute, he must therefore be able to prove in court that there is reason for dismissal. Behavioral dismissal should therefore never be given lightly.
According to one Dismissal study From the data science company ONE LOGIC from 2018, only nine percent of all ordinary cancellations are behavioural. It is nevertheless advisable to seek legal advice to ensure that the employment law requirements for effective dismissal are met in a specific case. Because ineffective terminations can damage the company not only legally but also financially.
Important to know: If the employment relationship is subject to general protection against dismissal, only socially justified dismissals are effective. Dismissal is socially justified if it is due to personal, behavioral or operational reasons (Section 1 (2) Dismissal Protection Act (KSchG)). However, the Dismissal Protection Act only applies to companies with more than ten employees. It must therefore not be a small business. There is severely limited protection against dismissal here and employers can generally also resign without giving reasons. In addition, in accordance with Section 1 (1) of the Consumer Protection Act, the employee must have been employed by the company for more than six months.
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What requirements must be met for behavioral termination?
According to German employment law, behavioral dismissal only applies if, in addition to the general requirements for dismissal, are met.
There must be a violation of work obligations
Without a breach of employment contract obligations, behavioral dismissal is not possible. This means that the employee did not comply with the agreements made in the employment contract and violated his duties. Both major and ancillary obligations may be relevant to termination.
The breach of duty must involve taxable conduct. The employer must therefore be able to accuse the employee of fault within the meaning of Section 276 of the Civil Code (BGB). This is the case when the person concerned is unable to justify their conduct and has acted either intentionally or at least negligently.
Termination must be proportionate
This means nothing else than that dismissal must in principle be the last resort to react to the specific alleged misconduct. Before the employer resorts to dismiss, he must therefore check whether more lenient measures, such as a warning or, if applicable, a transfer, could be successful. Only when the employee repeats the behavior that has already been warned and a warning has been unsuccessful is that usually sufficient for dismissal.
This is also referred to as a negative forecast. Basically, it's not about getting rid of the employee because they've done something wrong. Rather, it is a question of whether he will repeat this alleged misconduct in the future. A good employment relationship is based on mutual trust and if this relationship of trust is permanently disrupted, continuing the employment relationship can become an unreasonable burden for the employer.
Employer interests must prevail
In the case of behavioural dismissals, the different interests of employer and employee often clash — and these must be balanced against each other if all of the above requirements are met. The overall situation is therefore considered and examined which aspects speak in favour of termination from the employer's point of view and which circumstances speak in favour of continuation of the employment relationship despite the breach of duty from the employee's point of view. Here, for example, the length of employment, age, any maintenance obligations and the question of whether the employee has ever allowed himself to become indebted.
Hearing of the works council
If there is a works council in the company, in accordance with Section 102 Works Constitution Act (BetrVG), this must be consulted before dismissal, otherwise it is ineffective. This means that the employer must present to the works council the reasons why an employee should be dismissed.
What are the reasons for behavioral terminations?
In principle, the Act does not provide any specific reasons for termination due to conduct. However, there are a number of court decisions that have confirmed possible breaches of duty to work and relate to areas such as work performance, the relationship of trust between employer and employee, and the disturbance of operational peace.
Examples of breaches of duty that may justify behavioral termination include:
- Repeated late arrival or lack of punctuality
- Minus hours
- missing or late sick report
- underperformance
- private use of Internet or telephone
- refusal to work
- Working time fraud
- Expense fraud
- insulting colleagues, supervisors or employers
- Breach of confidentiality
- Violations of operating regulations
- Use of alcohol or substance in the workplace
- Smoking despite smoking bans
- bullying
- theft
- sexual harassment
- Start of vacation without employer approval
- illicit activity for the competition
Specific examples of behavioural dismissals from employment law practice
Employees can defend themselves against this with a dismissal protection lawsuit if they have been dismissed due to conduct. A labor court must then clarify whether the dismissal was admissible in a specific case or not. Examples of behavioral dismissals from the case law of the labor courts show that the individual case is always very important and that companies take on major legal and financial risks if they overlook important requirements.
Constant late arrival (lack of punctuality)
If an employee is constantly late, regularly leaves earlier or misses meetings and appointments, this can significantly disrupt business processes and the working environment. An employee's secondary duties also include showing up for work on time. If he repeatedly fails to comply with the prescribed working hours and ignores his work obligations to the employer, this may justify dismissal due to conduct. In such a case, however, termination without notice is only possible if the lack of punctuality reaches the level of refusal to work, as decided by the Düsseldorf Labour Court in February 2022 in the case of an employee of the car rental company Sixt (Article dated 24.2.2022, 10 Ca 4119/21).
Working time fraud
If an employee intentionally stamps or pretends to work even though he goes shopping, for example, he is deliberately violating his work obligation — and that in itself is a reason for dismissal due to conduct. Even slight deviations from actual working hours can give rise to immediate dismissal due to working time fraud.
Poor or underperformance (so-called low performer)
There can be many reasons why an employee's work performance falls or remains below average, such as lack of motivation, excessive demands, or negligence. If there is a serious below-average performance on the part of an employee because he deliberately remains below his performance and does not have the will to perform the possible workload, the employer may terminate due to conduct after prior relevant warning. This is what the Cologne Regional Labor Court ruled in a Judgment of May 2022. In contrast to personal dismissal, poor performance is based on the employee's lack of will. In short: he could, but does not want to provide the justifiably expected service.
Alcohol consumption in the workplace
If an employee repeatedly violates an alcohol ban in force in the workplace, for example by appearing to work drunk and thus unable to fully pursue his work or even endangers others, this may give rise to behavioral dismissal. The employer can warn against a violation of a stated alcohol ban. In case of repetition, termination may also be appropriate.
But beware: The situation is different in the case of alcohol addiction, because the breach of duty must be the result of controllable conduct. If an employee was unable to control their misconduct, as would be the case with a drinking problem, behavioral dismissal is out of the question. However, personal termination may be possible under certain circumstances.
Missing or late sick report
If an employee is late or does not call in sick correctly, this can result in a warning and, in the worst case, a behavioral dismissal. This is because employees are required to inform their employer of an incapacity to work due to illness and its expected duration as soon as possible (Section 5 (1) Continued Payment Act (EntGfG)). According to the Federal Labour Court (BAG), late or insufficient sick leave can therefore result in ordinary dismissal (Published on 7.5.2020, 2 AZR 619/19). According to the BAG, this also applies to continued illnesses.
bullying
Bullying at work is a violation of employment contract agreements and can therefore also result in behavioral dismissal. In principle, employers have the obligation to protect their employees from bullying (Section 12 General Equal Treatment Act (AGG)) and to warn the perpetrator if they become aware of acts of bullying. If there is evidence that there is another act of bullying, employers may also resort to dismissal.
But beware: Employers must investigate allegations of bullying and check whether the allegations are justified before they can warn and, if necessary, terminate. In particularly serious cases, such as criminal offences (e.g. a physical attack) or severe discrimination, extraordinary dismissal is also possible.
Unexcused absence
If an employee does not come to work and is also not available, the employer may warn against this behavior. However, if the behavior does not improve and the employee is repeatedly absent without apology, this may well be a reason for behavioral dismissal. Especially when the breach of duty has taken place on a larger scale and the employee is absent for days, for example, without excusing the absence from the outset.
Private Internet and telephone use at work
Many employers tolerate their employees surfing the Internet privately from time to time. However, usage should be limited and not affect work performance. However, if an employee uses the Internet privately during working hours despite an express prohibition, employers may enforce disciplinary measures such as a warning. In this case, termination is usually only possible after an unsuccessful warning. The situation is different when private Internet use is excessive or significant. Employers may then resort to extraordinary dismissal, the Cologne Regional Labor Court ruled in a Judgment of February 2020.
theft
If an employee verifiably allows company ownership to go along, the employer may in principle terminate the employment relationship. The value of the stolen object plays a rather subordinate role. Because theft at work is primarily about a breach of trust between employer and employee. Therefore, even in the event of minor theft, immediate termination may well be justified.
However — and that has “Emmely” case shown — a warning may be required in individual cases. A Berlin cashier had redeemed two deposit vouchers worth a total of 1.30 EUR that did not belong to her. Her employer then terminated her without notice. However, the BAG later declared the termination to be disproportionate and therefore ineffective, as the damage caused was minor and the cashier had already been employed in the company for many years without complaints.
What do you have to consider as an employer in the event of a behavioral dismissal?
If the employment relationship is to be terminated due to behavioral reasons, the correct procedure is particularly important for the employer — and should be well prepared. The legal requirements mentioned above must always be met so that a termination is “legally binding” even in the event of a dispute. If this is not the case, the employer must continue to employ the employee. However, there are also some details to consider when issuing a warning or termination agreement.
Behavioral termination without warning — is that possible?
In most cases, as part of a behavioral termination, a previous warning necessary. It should be borne in mind that this is controllable behavior on the part of the employee. The warning is intended to draw his attention to his misconduct and also give him the opportunity to refrain from doing so. As a rule, however, just a one-time warning is not enough. Minor misconduct (e.g. minor delays at work) should therefore be warned several times before dismissal. This is especially true before the dismissal of a long-time employee.
In exceptional cases, behavioral termination is possible without warning, for example in the event of serious disturbances in the relationship of trust or if it is obvious that the warning would have no effect.
Not every warning gives the right to cancel. When saying, you should refer to the Similarity of infringement be respected. For example, if the employer issues a warning due to an insult, he cannot subsequently resign due to frequent delays on the part of the employee due to conduct. If the same misconduct is repeated regularly despite a warning, termination may follow.
The exact time and misconduct should be clearly stated in the warning letter. The employee must therefore unequivocally recognize that there is a risk of dismissal should the conduct continue.
How should a behavioural dismissal be made?
The employer should always explain a behavioral dismissal in writing, not by telephone or via e-mail.
It is advisable to hand over the letter of dismissal to the employee in the presence of a witness and to have receipt confirmed. If there is a court dispute, the employer must prove that the employee has received the notice in due time. The burden of proof therefore lies with the employer.
From the employer's point of view, it is important to prepare the evidence for the dispute and to document all incorrect violations in detail. Warnings should therefore contain detailed descriptions, including, if necessary, the names of witnesses. However, care should be taken when it comes to monitoring measures, which can be problematic under data protection law and are generally not usable.
Termination agreement as an alternative?
By the way, an employment relationship does not always have to be terminated by unilateral dismissal for behavioral reasons. An alternative could be a so-called termination agreement, which has both advantages and disadvantages for the employee.
However, a significant advantage for both sides is the fact that the employment relationship is terminated without conflict or dispute. In German employment law, a termination agreement (often also known as a termination agreement or dissolution agreement) governs that the employment relationship is terminated by mutual agreement by both parties, which means that it cannot be enforced. During an interview, the employer should explain the consequences, as this can lead to conflicts and risks in practice (e.g. suspension period at ALG). Don't forget: Such a contract can be concluded with or without severance pay.
How can you prevent behavioral dismissal as an employer?
Before there is a warning or, as a last resort, even a behavioral dismissal, the employer can take a number of measures to counteract this.
Regular feedback meetings with employees, which can significantly contribute to a good working environment, are particularly important in this context. As a result, unpleasant employment law sanctions can often be circumvented if the expectations of both sides are clearly communicated. The unequivocal definition of guidelines and clear rules in the company is of great importance and should always be communicated openly.
In particular, if an employee is supposed to leave the company involuntarily, there is usually potential for conflict. An organized and smooth offboarding process for the departing employee is therefore just as important as a good onboarding process. Successful offboarding can reduce the risk of legal disputes and creates an appreciative climate.
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