The Legal 500

Twitter Logo Youtube Circle Icon LinkedIn Icon

GRP Rainer LLP

Work +49 221 272 27 50
Fax +49 221 272 27 52 4
Berlin, Bonn, Cologne, Dusseldorf, Frankfurt, Hamburg and 3 more

Show all Press releases

BAG: Dismissal with immediate effect on account of sexual harassment

October 2017

Reaching into a work colleague’s personal space can justify dismissal with immediate effect, even if the act was not sexually motivated. That was the verdict of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court (Az.: 2 AZR 302/16).

We at the commercial law firm GRP Rainer Rechtsanwälte note that it is possible having regard to all of the circumstances of a given case to exceptionally terminate an employment contract with immediate effect if there is good cause for doing so. One example of what constitutes good cause justifying dismissal with immediate effect is sexual harassment in the workplace, even if the act was not sexually motivated. That was the decision of the Bundesarbeitsgericht in its ruling of June 29, 2017 (Az.: 2 AZR 302/16).

In the instant case, a worker had painfully grabbed a colleague from a temporary employment agency between the legs from behind and then made remarks. The employer subsequently decided with the works council’s involvement to issue notice of dismissal with immediate effect and, in the alternative, ordinary notice of dismissal. While the worker’s action for wrongful dismissal was successful before the Landesarbeitsgericht (Regional Labour Court), the BAG took a different view on the matter as the court of highest instance, ruling that intentionally touching a colleague’s personal space always constitutes sexual harassment. The judges went on to say that it does not matter whether the act is sexually motivated, because sexual harassment is often about expressing hierarchies and exercising power and less frequently driven by sexual desire. The BAG held that dismissal is justified in these kinds of cases.

The Landesarbeitsgericht must now revisit its decision regarding whether the dismissal was effective. It needs to clarify taking into account all of the circumstances of the case in question whether the employer can be expected to continue the employment relationship at least until the next possible termination date under ordinary dismissal. It may be the case that a formal warning would have sufficed to influence the relevant employee’s behaviour such that he would not have violated his contractual obligations going forward.

Whether exceptional notice of dismissal is effective is a decision that is always made on a case-by-case basis, with respect to which the labour courts must weigh up the interests of the respective parties, thus making it all the more important for employers to carefully prepare notices of exceptional dismissal. Lawyers who are experienced in the field of employment law can advise employers on matters pertaining to dismissal as well as in relation to other legal issues.

Legal Developments by:
GRP Rainer LLP

Legal Developments in Germany

Legal Developments and updates from the leading lawyers in each jurisdiction. To contribute, send an email request to
  • LAG DĂĽsseldorf: Dismissal with immediate effect valid in response to threat

    Anyone who seriously threatens their employer or superior should expect to be dismissed with immediate effect. This was confirmed by a ruling of the Landesarbeitsgericht (LAG) DĂĽsseldorf [Regional Labour Court of DĂĽsseldorf] from June 8, 2017 (Az.: 11 Sa 823/16).
  • Tax evasion: Only voluntary disclosure affords protection from severe penalties

    Anyone who has been caught for tax evasion should expect to be faced with severe penalties. Voluntary disclosure is the only way of returning to a state of normal tax affairs and avoiding penalties.
  • GSK Update: AIFM Marketing in Germany - The clock is ticking for U.S. and other non-EU fund managers

    Our GSK Update informs about the impact of recent German investment fund legislation (UCITS V Implementation Act) for AIF managers, who are not domiciled in the EU (“non-EU-AIFM”) and who seek to market AIF shares in Germany in accordance with applicable German investment fund law under the EU-AIFM Directive (2011/61/EU).
  • GSK expands Luxembourg presence with a new tax partner

    Opened at the beginning of March 2016, GSK Stockmann + Kollegen continues to expand its Luxembourg office. Mathilde Ostertag recently joined the Luxembourg team of Equity Partners Dr. Marcus Peter, Andreas Heinzmann and Dr. Philipp Mößner as Local Tax Partner.
  • EIA - Strengthening the role of the public

    Among other things, the recent amendment to the Environmental Impact Assessment Act has broadened the rights of (what is termed) the "affected public". The affected public consists primarily of various citizens' initiatives pursuing environmental or public-health purposes. It may for instance file an appeal against a negative decision at the screening stage (i.e., a decision according to which the given project does not require the issuance of an EIA report), and seek its annulment in court. The affected public has been granted a stronger voice also in subsequent procedures in which the fate of a building project is being decided: zoning proceedings and the proceedings on the issuance of a building permit. Taken together, these legislative changes may make it more difficult to implement projects which require an EIA report; in particular, the length of permission proceedings may be substantially extended.
  • New Top Level Domains – Noerr expert warns against trademark infringements

    On June 13, the Internet Corporation for Assigned Names and Numbers (ICANN) published the names of those who have applied for a new top level domain the ending of which may be geographic, such as "munich", industry identification such as "insurance" and even all trademark names and company descriptions such as "canon" and "adidas".
    - Noerr
  • No obligation to set up filtering systems in order to prevent copyright violations

    ECJ, decision of February 16th, 2012, ref. C-360/10 – SABAM
  • Further ECJ Ruling concerning NGO’s right of action under German environmental law

    For the second time within a short period of time, the non-governmental organisations right to challenge administrative decisions under German law is going to be subject to the jurisdiction of the European Court of Justice (ECJ). In January 2012, the German Supreme Administrative Court (Bundesverwaltungsgericht) referred a case to the ECJ for a preliminary ruling concerning the NGO’s right of action.
  • Lessons in Cross-Border M & A Transactions

    The fundamental advice for international business transactions is obvious and easy to understand: different countries have different laws, business habits and cultures. These differences may range from minor nuances, such as lengthy French business lunches or unusual Spanish office hours, to significant legal roadblocks, such as strict European employment laws.
  • Priority rental rights in insolvency

    Parties to rental contracts for commercial premises often agree priority rental rights. In practice, this concept is used to cover a whole series of legal structures. These range from fixed options for the tenant to a promise made by the landlord as a business policy that if any additional premises become available, they will be offered to the tenant. In 2010 the Berlin Court of Appeal issued a ruling on such priority rental rights in insolvency; the decision has recently been published.