The Cologne Regional Labor Court In its judgment of March 03.03.2023, 6 (Az: 385 Sa 21/XNUMX) decided to terminate the company without notice due to sexual harassment. A warning is not necessary if the sexual harassment is so serious that the employer cannot accept it from the outset.
1. FACTS
The plaintiff employee had worked for the defendant city for over 35 years. He has worked as deputy department head since 2014. After allegations of sexual harassment against the plaintiff emerged during an employee survey, the defendant city terminated the employment relationship without notice. There were no previous warnings.
The plaintiff's behavior included, on the one hand, physical assault, namely pinching the side of an employee, poking the pregnant belly of another employee and throwing scraps of paper into the cleavage of a third employee.
There were also verbal attacks on employees or in their presence, for example: “Roasting in the oven; has such a plump butt; … how big her breasts are then; like to slap your butt; nice legs; in good shape; great breasts; red clothes when they are on their period; bubble butt; duck ass; atomic breasts; “I would like to see a bare midriff” etc.
The plaintiff was of the opinion that the termination was invalid because there was no important reason. In addition, the staff council was not properly consulted and there was no prior warning.
The Siegburg labor court upheld the lawsuit. The defendant's appeal was successful. The LAG Cologne dismissed the lawsuit.
2. DECISION
According to the LAG, the termination without notice was effective. The defendant has an important reason in the sense of § 626 Paragraph 1 BGB had. This arises “in itself” from the physical assaults, the verbal assaults and the build-up and maintenance of a basic situation over the years, which was characterized by sexualized hierarchical influence by the plaintiff and even more so from the combination of the individual allegations . According to the LAG, the attacks in question constitute massive sexual harassment.
In this specific case, more lenient means than immediate termination would not be considered. In principle, extraordinary termination requires a warning. However, a warning was unnecessary in the specific case because no change in behavior was to be expected and the breach of duty was so serious that accepting the behavior - with or without a warning - was obviously impossible according to objective standards.
In addition, the staff council was properly heard (which the labor court had seen differently). The plaintiff could also not invoke the right to freedom of expression because comments like “come to the office after you give birth so I can see how big your breasts will be; bubble butt; great figure; duck ass; good figure for having children; is she pregnant?; in good shape; nice legs; great breasts; pretty woman, but I don't want to wake up next to her without makeup; the head of the department is a stupid cunt” etc. violated the human dignity of those addressed in this way by reducing them to an object.
3. CONCLUSION
The Cologne LAG's decision represents an important contribution to the protection of women in the workplace. Employers are advised to implement structures that prevent sexually harassing behavior in the workplace at an early stage and protect employees from such situations. In addition, consistent action against such behavior is recommended in order to sensitize employees to this issue.
