BAG: Unauthorised private use of official computer may justify termination without notice

According to a ruling of the Bundesarbeitsgericht (German Federal Labour Court), unauthorised private use of an official computer may justify an exceptional notice of termination under employment law.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London - www.grprainer.com/en conclude: In its judgment of July 16, 2015, the Bundesarbeitsgericht ruled that the unauthorised private use of an official computer by an employee can justify the employer terminating the employment relationship without notice (Az.: 2 AZR 85/15).

In the case in question, a court employee made private use of his official computer. During a business audit in March 2013, more than 6,400 e-book, video, audio and image files were found on the computer"s hard drive. Additionally, a programme was installed on the computer with which one could circumvent producers" copy protection. About a month later, the employee received an exceptional notice of dismissal with immediate effect, and alternatively ordinary notice of the employment relationship"s termination by way of a letter dated May 13, 2013.

The employee lodged an action for unfair dismissal in response to this. The courts of lower instance granted the action, but the BAG reached a different conclusion. The 2nd Senate of the BAG held that even if other colleagues had made private use of the computer concerned, this did not exclude the possibility of termination (http://www.grprainer.com/en/legal-advice/employment-law/employment-termination.html)without notice. The Court went on to say that the fact that the employee was allowed to use his official computer for certain private purposes did not represent an obstacle to termination; the employee could not infer from this authorisation that the offending pirated copies would have been permissible. For this reason, the termination was effective. The case was remitted to the regional labour court for further litigation.

Terminating an employment relationship can always give rise to difficulties, as a termination needs to comply with various requirements for it to be effective. It is also important to make a distinction between an exceptional and an ordinary notice of dismissal. In the case of an exceptional notice of dismissal, the German Kündigungsschutzgesetz (Protection Against Dismissal Act) affords little protection. That being said, the employee generally needs to have committed a serious breach of duty. Should questions arise regarding termination, employers can turn to lawyers who are competent in the field of employment law.

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