"Coronavirus Cough" at Co-workers As Grounds for Dismissal
Landesarbeitsgericht Düsseldorf (Higher Labour Court of Dusseldorf) of 27 April 2021 - 3 Sa 646/20
An employee can be given notice immediately if he/she coughs at a co-worker on purpose in close proximity and states that he/she hopes to give the other person the coronavirus.
The employer claimed that the employee repeatedly failed to comply with the hygiene protocol implemented at the workplace, such as covering mouth and nose when coughing or sneezing and maintaining distance. The employee had already signalled beforehand ‑ which is a second allegation - that he "did not take seriously" the company's coronavirus policy. Finally, the employee coughed at a co-worker from very close by and said: "Chill, you won't get Covid". The employer then terminated the employment relationship without notice. At the time of the dismissal, the employer did not know whether the employee had actually been infected with the coronavirus.
The employee filed a dismissal protection suit, contradicting the employer's description of the case. He claimed to have felt an urge to cough on that day and that he had to cough spontaneously. He further claimed to have kept a sufficient distance to his co-workers. The Higher Labour Court granted the claim. In this specific case, the employer was unable to prove a breach of duty of the employee. Ultimately, it was at the employer's disadvantage that the employer bears the burden of proof for the existence of grounds for dismissal in proceedings.
Those who disregard hygiene procedures in the workplace risk labour law consequences. Irrespective of the individual case, the Higher Labour Court expressly emphasized that the facts described by the employer - assuming they were true - could in principle justify a termination of the employment relationship without notice. A person who deliberately coughs at a co-worker from close by and says that he/she hopes to give the co-worker the coronavirus seriously breaches the duty of consideration towards his/her co-worker which is part of the employment relationship.
The decision shows that the coronavirus pandemic creates new potential for conflict in employment relationships. Depending on the seriousness of the breach of hygiene procedures, the employer may react with a warning or even extraordinary dismissal. Employers are therefore well advised to document breaches of the hygiene protocol specifically in order to be able to prove them in case of dispute.