Extraordinary termination due to off-duty conduct

A strict distinction must always be made between private and business life. Off-duty conduct can therefore only justify dismissal within very narrow limits. Extraordinary dismissal for off-duty conduct can only be considered if there is a connection with the employment relationship. If there is no such connection, a breach of duty relevant to dismissal is generally ruled out.

Background

In its ruling dated February 28, 2024 (case no. 2 Sa 375/23), the Lower Saxony Higher Labour Court (LAG) addressed the question of when conduct outside of work can justify extraordinary dismissal. It must be taken into account that employees are also obliged to show consideration for the legitimate interests of their employer outside of their working hours. The duty to show consideration can therefore also be breached in exceptional cases through off-duty conduct. However, such conduct can only affect the legitimate interests of the employer or other employees if the conduct is related to work-related activities. This is the case if the off-duty conduct has a negative impact on the company or is related to the employment relationship.

What had happened?

The judgment of the Lower Saxony Higher Labor Court relates to a case in which several trainees from a company took part in a seminar as part of educational leave. After the end of the seminar day, some of the trainees visited the swimming pool on the seminar grounds. Late in the evening, one of the company's trainees unexpectedly put his arm around a colleague from behind and hit her on the chest. She reacted immediately by saying: "Don't touch me!" and running away. As she ran out of the swimming pool, the trainee shouted after her: "Don't be like that!".

Key reasons for the decision

The Lower Saxony Higher Labor Court ruled that the trainee's behavior constituted sexual harassment, as a result of which the trainee had significantly violated his duty to take the employer's interests into consideration. The fact that the sexual harassment took place outside of working hours - namely after the end of the seminar - did not contradict this. The off-duty conduct had a connection to the employment relationship, as the trainee had harassed his colleague. The sexual harassment committed by the trainee also had a negative impact on the working relationship. The trainee concerned had told her employer's plant security that she did not want to talk to her colleague or be alone with him in future. She was afraid of him.

The LAG clarified that sexual harassment of employees or trainees constitutes a significant breach of contractual obligations. In addition, sexual harassment regularly constitutes a disturbance of industrial peace, which can result in termination without notice. There was no reasonable way to continue the training relationship in this case. The employer could not reasonably be expected to accept any milder response. A prior warning to the trainee was also unnecessary due to the severity of the breach of duty. The Lower Saxony Higher Labor Court therefore consistently ruled that the extraordinary dismissal was effective.

Conclusion

Despite the strict separation between private and work-related areas of life, conduct by employees outside of work may exceptionally justify extraordinary dismissal if the following conditions are met:

The conduct is "in itself" suitable to justify extraordinary termination without observing the relevant notice period.
The off-duty conduct impairs the legitimate interests of the employer or other employees.
The off-duty conduct has a negative impact on the company or is related to the employment relationship.
The extraordinary termination is justified taking into account all circumstances of the individual case and weighing up the interests of both parties to the contract. The decisive factor here is also whether the person is a representative of the company to the outside world.

The question of the possibility of extraordinary dismissal due to off-duty behavior is becoming increasingly important, especially in times of social media. Only recently, a video on social media in which people shouted right-wing slogans attracted a lot of attention. If you become aware of off-duty conduct by your employees that could be grounds for extraordinary dismissal - for example, your employees publish a video on their private social media channel in which they shout right-wing slogans - always check first whether there is a connection to the employment relationship or whether negative effects on your company are to be expected. A connection to the employment relationship may exist in the case of private right-wing extremist behavior, for example, if the central objectives of your company are the containment of violence and the reduction of extremist prejudices, enemy stereotypes or xenophobia.

We would be happy to advise you on this.