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Breach of confidentiality obligation – Dismissal with immediate effect valid

October 2017

Breach of a confidentiality obligation can justify issuing an employee with notice of dismissal with immediate effect. That was the verdict of the Landesarbeitsgericht (LAG) Baden-Württemberg [Regional Labour Court of Baden-Württemberg] (Az.: 12 Sa 22/16).

We at the commercial law firm GRP Rainer Rechtsanwälte note that before an employer can effectively issue notice of dismissal it needs to assess whether less severe measures such as a formal written warning would be sufficient to prompt the employee to conduct himself in a dutiful manner. Having said that, a ruling of the LAG Baden-Württemberg from November 11, 2016 shows that it is possible to forgo a formal warning if the employee commits a serious breach of duty.

Employees’ duty of confidentiality is particularly important in certain professions, e.g. for doctors and their employees. Patients have a relationship of trust with their doctor and expect that their documents and records will not be shared with third parties without authorization, but this is exactly what happened in the case that came before the LAG Baden-Württemberg. After a patient had cancelled her appointment, a doctor’s assistant took a photo of said patient’s data sheet and sent it to her daughter along with the comment “Mal sehen, was die schon wieder hat” [Let’s see what she’s got this time]. The daughter then showed the message around in her sports club. When the patient’s father learned of this, he complained to the practice and the doctor’s assistant was issued with exceptional notice of dismissal with immediate effect. The duty of confidentiality had been explicitly agreed to in the employment contract. The employer took the view that the doctor’s assistant’s conduct constituted not only a breach of her contractual obligations but also an offence pursuant to sec. 203 para. 3 sent. 2 of the Strafgesetzbuch, Germany’s Criminal Code. It therefore concluded that this represented good cause justifying exceptional notice of the employment relationship’s termination. The doctor’s assistant’s action for wrongful dismissal was unsuccessful. The LAG held that dismissal with immediate effect had been justified, ruling that the employee’s conduct constituted a serious and intentional breach of her duty of disclosure as laid out in the employment contract. It went on to say that maintaining doctor-patient confidentiality, including on the part of non-medical personnel, is fundamental to the relationship of trust required between doctor and patient. The Court stated that the employer had a vested interest in quickly re-establishing this relationship of trust, which meant that it was not reasonable to expect it to continue the employment relationship and a prior formal warning was not necessary. That being said, whether exceptional notice of dismissal is effective is always a decision that is made on a case-by-case decision. Accordingly, it ought to be thoroughly prepared. Lawyers who are experienced in the field of employment law can advise employers.

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