Dismissal of a "corona cougher"
Update Employment Law June 2021
Regional Labor Court Düsseldorf, April 27, 2021 - 3 Sa 646/20
The corona pandemic continues to occupy German courts. At the end of April, the Regional Labor Court Düsseldorf decided that coughing at a fellow employee from a close distance can justify extraordinary dismissal during a pandemic.
The plaintiff had been employed in the defendant's company since the summer of 2015. He was also a member of the company's representative body for young employees and trainees. In March 2020, the defendant introduced an in-house pandemic plan. This comprised the necessary and also usual rules, including a rule on social distancing, the covering of mouth and nose when coughing, or sneezing into a paper tissue or the sleeve etc. The defendant had also provided its employees with extensive information and instruction concerning these rules by means of leaflets and emails.
The plaintiff was now accused of not having complied with these rules. For example, he had repeatedly commented that he "did not take the measures seriously" and would not comply with them. On March 17, 2020, he then intentionally coughed at a colleague from a close distance. He then told the colleague that he hoped the latter would catch corona. Whether the employee making the original claim actually was corona positive or not was not known. The plaintiff claimed that he had merely felt an irritation of the throat that had forced him to cough spontaneously. At the same time however, he had always maintained a sufficient distance. Whilst the other colleague felt harassed, he had merely told him that he should "chill out and would not catch corona". After hearing the works council and obtaining its consent, the defendant company then dismissed the employee extraordinarily without a notice period on April 3, 2020.
Although the Regional Labor Court commented explicitly that coughing at colleagues constitutes a material violation of the obligation of consideration towards colleagues and that such conduct during the corona pandemic can justify extraordinary dismissal, the employer was unable to prove the facts set out in the case at hand. As the employer bears the burden of proof concerning the grounds for dismissal, the plaintiff's action for unfair dismissal was successful.
While the court confirmed the legal view of the employer that conduct as described can constitute grounds for dismissal, the court was unable to establish the precise facts despite the hearing of witnesses.
The statement by the Regional Labor Court is however consistent with other judgments. For example, the Local Court Frankfurt am Main (albeit not of course in labor-court proceedings) issued a penal order against a woman who had intentionally coughed at a police officer during a police check. In this case, the court was of the opinion that, during a pandemic, even simple but deliberate coughing at a person can constitute relevant conduct under criminal law. It therefore applies the same underlying assessment that intentional coughing at other persons is not acceptable during a pandemic and can have consequences under employment law (and possibly under criminal law).