German Federal Labor Court Clarifies Employer Duties for Suspicion-Based Dismissals

00:00

24:53

Quick Hits

• Germany’s Federal Labor Court held that an employer’s failure to attempt contact with a vacationing employee for the purpose of a required hearing before issuing an extraordinary termination on suspicion rendered the termination invalid for exceeding the two-week notice period.
• An employer must make a reasonable attempt to reach an employee on vacation within one week of learning the relevant facts, and only such an attempt will suspend the running of the statutory notice period.
• The notice period will be suspended regardless of whether the contact attempt succeeds, but an employer may refrain from attempting contact only in exceptional circumstances.

The Federal Labor Court (Bundesarbeitsgericht (BAG)) (Decision of Dec. 4, 2025 – Ref. No. 2 AZR 55/25) clarifies: Employers must generally attempt to contact the employee who is absent due to vacation in order to facilitate a timely hearing. Under Section 626(2) of the German Civil Code (Bürgerliches Gesetzbuch (BGB)), the start of the two-week notice period for extraordinary termination is suspended only if the employer makes an attempt to contact the employee.

The Case—Termination After Returning From Leave

On April 27, 2023, a colleague accused a train conductor—who was protected against ordinary termination—of sexual harassment at his employer’s workplace.

At that time, the accused employee had already been on leave or approved vacation from April 25, 2023, through May 21, 2023, and was reachable during this period via email and phone on his work cell phone.

A hearing with the accused took place—without prior contact from the employer—only after his return from vacation at the end of May.

The accused employee was not summarily dismissed until June 6, 2023, more than a month after the employer’s authorized representative became aware of the allegation.

The employee challenged the termination without notice by filing an action for unfair dismissal with the Karlsruhe Labor Court (Arbeitsgericht (ArbG)), citing the employer’s failure to observe the two-week notice period required under Section 626(2) BGB.

The lower courts—the ArbG Karlsruhe and the Baden-Württemberg Regional Labor Court (Landesarbeitsgericht (LAG))—ruled in favor of the employee. The employer then filed an appeal with the BAG.

The Decision—Invalidity of the Termination

The BAG confirmed: The extraordinary termination was invalid due to failure to observe the two-week notice period (Section 626(2) BGB).

The two-week notice period began on April 27, 2023, despite the employee’s absence due to vacation, because the employer had not attempted to contact the employee for the purpose of a timely hearing.

Hearing and Start of the Notice Period

The two-week notice period under Section 626(2) BGB generally begins when the party entitled to terminate employment becomes aware of the facts relevant to the termination.

At the same time, an extraordinary dismissal based on suspicion generally requires the employer to hear the employee concerned.

If the employer conducts this hearing within one week of the party authorized to terminate employment first becoming aware of the facts relevant to the termination, the notice period under Section 626(2) BGB does not yet begin to run during this time.

Only the Employee Is on Vacation

If the affected employee is on vacation, this does not exempt the employer from the obligation to hear the employee on vacation in a timely manner, according to the BAG’s decision.

Accordingly, the employer must attempt to contact the employee on vacation—via telephone, email, messaging service, or even by mail—within a reasonable period of time to facilitate a timely hearing.

It follows from the notice period under Section 626(2) BGB that—even in the event of the employee’s absence due to vacation—clear conditions must be established promptly with regard to extraordinary termination.

Furthermore, neither national nor European Union vacation regulations would preclude an employer from contacting an employee who is on vacation for the purpose of a hearing.

Attempt to Contact Suspends Notice Period

The notice period is suspended only if the employer makes such an attempt to contact the employee, even during the employee’s vacation-related absence.

The suspension of the notice period is then independent of the success of the attempt to contact the employee. If, for example, the employer is unable to reach the employee or the employee refuses to comment, citing his or her vacation, the notice period will still not begin to run during the entire vacation.

In the case at hand, however, the employer refrained entirely from attempting to contact the employee, so that the notice period—without suspension—had already begun to run on April 27, 2023.

Inaction Only in Exceptional Cases

Only in exceptional cases may the employer refrain from taking action during the employee’s vacation-related absence if “special circumstances” render the attempt to contact the employee futile or make a hearing after the vacation appear appropriate.

Special circumstances generally exist, for example, when contacting the employee for the purpose of a timely hearing is impossible or unreasonable for the duration of the vacation. Contact may be impossible if the employee is known to be in a remote region during the vacation that offers no means of communication, such as by phone, email, messaging services, or mail. Contact may be unreasonable if advance notice of an intended hearing could complicate or prevent the clarification of the allegations.

However, in this case, the employer had not presented any such special circumstances in the dispute. Furthermore, the employee was generally reachable via his work cell phone during his vacation—making an attempt to contact him both possible and reasonable.

Key Takeaways—Implications for Practice

Employers must generally hear the affected employee within one week of the employer’s first knowledge of the facts relevant to the termination before proceeding with an extraordinary termination based on suspicion. As a rule, this places significant time pressure on the employer.

If the affected employee is on vacation, the employer cannot simply sit back and wait for the employee to return. Rather, the employer must attempt to contact the employee—by phone, email, messaging service, or mail—for the purpose of a hearing. An employer is permitted to refrain from attempting to contact an employee who is on vacation for a hearing only in rather rare cases, such as when there is a risk of evidence tampering.

If the employer attempts to contact the employee for the purpose of a hearing, this suspends the start of the two-week notice period under Section 626(2) BGB until the hearing takes place or until the end of the employee’s vacation.

Dr. Martin Greßlin is a partner in the Munich office of Ogletree Deakins.

Niklas Thiel, a law clerk in the Munich office of Ogletree Deakins, contributed to this article.

Ogletree Deakins’ Berlin and Munich offices will continue to monitor developments and will post updates on the Cross-Border, Germany, and Leaves of Absence blogs as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts