Judgment of the Labour Court of Cologne of 15 April 2021 in Case No. 8 Ca 7334/20
Even if an employee is unable to perform his duties because he or she is subject to a quarantine order, the employer will not normally be justified in dismissing the employee where the written confirmation of the order can only be submitted after a delay.
Facts of the case
The employee worked as an installer for the employer, a master roofer. When the letter of dismissal was issued, the employee had worked for the employer for less than six months.
The employee had had contact with someone who was infected with the SARS-CoV-2 virus and was ordered to isolate at home by the health authority. As a result, he was not able to report for work. The employer demanded the employee present the quarantine order. When the employee rang the health authority to inquire about a copy of the order, the health authority promised to send it, but it had not arrived so that the employee did not yet have anything present to his employer as proof. The employer doubted the truth of the information provided by the employee and terminated the employment relationship with immediate effect.
The Act against Unfair Dismissal did not apply as the employee was still in the waiting period and the employer employed fewer than ten workers. Accordingly, the termination did not have to comply with the strict requirements of the Act against Unfair Dismissal.
The Labour Court in Cologne still held that the dismissal was invalid because it went against public policy and good faith within the meaning of §§ 138 and 242 of the German Civil Code (Bürgerliches Gesetzbuch) and was therefore arbitrary. According to the Court, the dismissal was based on non-objective motives, as evidenced by the fact that the notice of termination was issued shortly after the quarantine order.
Consequences for practice
The judgment does not introduce anything innovative. Where the Act against Unfair Dismissal does not apply, the employer does not need grounds for dismissal to terminate the employment relationship unilaterally. However, as the Labour Court in Cologne correctly decided, the dismissal may still not be arbitrary. The German Federal Constitutional Court held in 1998 that even where the Act against Unfair Dismissal does not apply, the dismissal must still respect “a certain degree of social consideration” (Judgment of the Federal Constitutional Court of 27 January 1998 in Case No. 1 BvL 15/87).
The pandemic has shown that many, which fall outside of the legal framework, still require both employers and employees to exercise a degree of judgment. An employer should have some understanding in the case of a quarantine order when the employee is not able to immediately provide evidence of the order from the relevant health authority. The health authorities have reached their limits during the pandemic so that even employers should exercise some patience in the circumstances instead of immediately calling the information provided by the employee into question.
Author: Ines Neumann