Judgment of the Landesarbeitsgericht of Dusseldorf of 10 December 2020 in Case 5 Sa 231/20
If an employee insults his colleague and makes statements such as, “I wished for a gas chamber but didn’t get one. We should throw the Turks in the fire and cut off their heads instead,” even his acknowledged severe disability will not protect him from dismissal. The employee thought he was “untouchable” and his employment “could not be terminated” – but he was wrong.
Facts of the case
The employee had previously insulted his colleagues from Turkey, referring to them as “oil eyes,” “niggers,” and “subservient”. With the consent of the Integration Office, the employer terminated the employment contract with the employee, who then brought an action against unfair dismissal. The 5th Chamber of the District Labour Court (Landesarbeitsgericht) of Dusseldorf rejected the claim with its judgment of 10 December 2020.
The District Labour Court held that the termination of employment as a result of racist statements made about colleagues was socially justified and the employment relationship was effectively terminated. The insults, “oil eyes,” “niggers” and “subservient” are unacceptable insulting statements. The employee’s serious misconduct culminated in his inhuman, Nazi statement in response to a completely innocuous question from a colleague about what he received for Christmas. In light of the severity of his misconduct, a prior written warning was unreasonable in this case – according to the Judge – and the balance of interests fell on the side of the employer, despite the employee’s severe disability.
Consequences for practice
Racist statements made at work constitute unacceptable insults and justify the termination of the employment. The judgment in this case is reminiscent of the “Ugha, ugha!” judgment of the Federal Constitutional Court (Bundesverfassungsgericht) from last year. The Judges in Karlsruhe put an end to the constitutional complaint of an employee against the termination of his employment without notice due to degrading insults (Judgment of the Federal Constitutional Court of 2 November 2020 in Case 1 BvR 2727/19). The employee in that case emulated his dark-skinned colleagues making ape sounds.
These judgments raise awareness of the fact that racism is everywhere, even in the workplace.
Employers should consider dismissing an employee even in supposedly difficult situations, such as where there was no prior written warning and the employee in question has (special) protection against dismissal. In any case, warnings should be issued for even comparatively mild insults of superiors, colleagues or third parties in order to make it clear that such conduct will not be tolerated in the workplace.
Authors: Dr Kathrin Bürger and Anne-Kathrin von Dahlen