Die Verdachtskündigung unter Berücksichtigung des „Vertrauenskapitals“ (English shop)

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The institution of dismissal on suspicion (Verdachtskündigung), developed by the courts, takes account of the fact that even the mere suspicion of a serious breach of duty can, under certain circumstances, destroy the relationship of trust so lastingly that the employer can no longer be expected to continue the employment relationship. Because of its inherent “immanent tragedy” – namely that it may cause even a dutiful employee to lose his or her job unjustly – dismissal on suspicion has always been controversial. Yet initiatives to restrict its application were recently rejected by the legislature. This study shows that the legal-dogmatic objections to its application are untenable, that the legal concept of dismissal on suspicion is in fact permissible, and that it can be classified as a dismissal for reasons relating to the person within the system of grounds for dismissal under the KSchG.

The study further addresses the requirements for the effectiveness of a dismissal on suspicion. The focus is on the numerous questions arising from a practitioner’s perspective: the existence of a strong suspicion of a serious breach of duty, the resulting loss of trust, as well as the fulfilment of the employer’s duty to investigate and the hearing of the employee required for this purpose. It is shown how the employer can meet these requirements in practice.

With the so-called “Emmely” decision, the Federal Labour Court (BAG) clarified that although offences against the employer’s property and assets can in principle justify a dismissal even in the area of so-called trivial matters, the “trust capital” acquired during a long-standing employment relationship free of complaints may, in the balancing of interests to be carried out, tip the scales in favour of the employee’s interest in the continuation of the employment relationship.

Proceeding from the assumption that “trust capital” will in future likewise have to be taken into account in the balancing of interests prior to a dismissal on suspicion, the study examines how “trust capital” can be built up or eroded and what effect it has in the context of dismissal on suspicion. The requirements for documenting disturbances of trust that have occurred and the employer’s options for mitigating the tension between loss of trust and “trust capital” from an objective viewpoint are set out.