Coronavirus Protests and the Limits of Labour Law
The coronavirus pandemic poses great challenges for the country and is unsettling in various ways. Recently, a protest in Leipzig against the measures to contain the pandemic made headlines. The so-called 'hygiene demonstrations' also became known through large rallies in Berlin, during which thousands of people from a variety of interest groups expressed their disapproval of politics and coronavirus restrictions.
This not only leads to debates in everyday life. Employers are faced with very practical consequences in their companies due to the participation of their employees in those protests. Often the question comes up whether labour law consequences are or maybe should be an adequate response. So far, there have not yet been any court rulings on this subject, especially no decisions by the Supreme courts, which employers could use as a guide. Therefore, even in case of possible breaches of duty by an employee in connection with Covid-19 and the pandemic, the standard principles of labour law must be applied. This post provides an overview of which these are and which are not.
Participation in 'Hygiene Demonstration' as Grounds for Termination?
The participation of an employee in a demonstration against the measures to contain the coronavirus pandemic does not in itself constitute grounds for dismissal. Even if the employer disagrees and may be disturbed by the fact that an employee is at a rally with anti-constitutionalists: An employee's freedom of expression and freedom of action are protected by Article 5 (1) and Article 2 (1) of the German Constitution (Basic Law, GG). In private life, employees are entitled to attend 'hygiene demonstrations'. Employers cannot prohibit that.
Termination Justified In Case of Contact with At-Risk People?
However, the private behaviour of an employee may affect professional life, as a case showed that caused quite a stir in the media:
A nursing home cleaner attended a protest in Berlin against coronavirus restrictions. On the following Monday, she reported sick with symptoms of a cold, unable to work. Since the employee had made no secret of her participation in the protest, the employer had been able to find out about it via Facebook. The employer therefore asked the employee to present a negative coronavirus test, which the employee refused. The employer then issued a termination without notice, the effectiveness of which has not been finally clarified in court.
Still, this case can hardly serve as a blueprint for future, similar cases: Firstly, the case is special due to the contact with at-risk patients in a care facility, which is not given in all sectors. Secondly, the employee was still on her probationary period. A special ground for dismissal was therefore not required, at least not for an ordinary termination.
Dismissal after Posting of 'Coronavirus Joke'
But even in industries where there is no contact with at-risk patients, an employee can endanger colleagues through his or her behaviour, whether by participating in a coronavirus demonstration or through other behaviour in private life. This spring, for example, an employee posted in his WhatsApp status a photo of himself in a cheerful gathering with several friends playing cards more participants than were allowed in a private household at the time and without distance. He chose "Quarantine at my place" as a caption and added a winking smiley face. The employer saw the post and concluded that the employee did not take the coronavirus measures seriously and would in future also not comply with them at the workplace. Since the employer felt it was its duty to protect at-risk persons in the company, the employer gave a dismissal without notice.
Before the labour court, the employee stated that it was a joke and that the date the photo was taken was before the first lockdown. No decision was made: The parties agreed to terminate the employment agreement with the payment of a severance pay. However, it can be assumed that the decision would have been in favour of the employee. Uploading a photo, the date of which is unclear, might not immediately lead to the conclusion that the employee would in future also not comply with hygiene regulations at the workplace. Apart from the question of the extent to which the employer could have fulfilled its burden of presentation and proof, a warning would have had to be considered first.
What are Labour Law Consequences an Employer May Take?
The cases described above show that it is not that easy to terminate an employment agreement with or without notice if the employer wants to take a path that is as legally secure as possible. A termination always has to be the last resort. The employer must have exhausted all other, more lenient measures before it can resort to the last option, a termination. The question is therefore how to proceed if an employee obviously poses a danger to colleagues and third parties, such as patients or nursing home residents, due to his or her behaviour, especially to people who belong to a vulnerable group.
Can an Employer Require Employees to be Tested?
It is conceivable to ask an employee who attended an anti-lockdown protest to take a test and to order that the employee may only return to the workplace with a negative result. Whether this is possible cannot be clearly answered at present due to the unclear legal situation.
Pros and cons have to be weighed up: A test is an encroachment on the employee's personal rights which are protected by basic law. On the other hand, there is the danger to life and limb of other people. The higher this danger is, for example in case of contact with high-risk patients, the more likely it is that the employee would have to undergo a test. However, this question has not yet been clarified, so that no clear answer can be given as to how the employer can proceed in a legally secure manner, should an employee refuse to be tested.
Other Options in Case Testing is Refused?
If the employee refuses testing, an employer could try to have, for this individual case, an obligation clarified in court, in case of doubt in interim proceedings. However, due to time concerns alone, this is unlikely to be an effective means and would probably entail costs rather than benefits. It would be conceivable and in the current situation this seems to be the most practical way to give the employee unpaid leave and not to let the employee return to the workplace. If the employee shows no symptoms after 14 days following the general quarantine recommendations, he or she can return to the workplace. If there are respective agreements in the company, the employee can be asked to work from home to protect colleagues.
But what if the employee regularly takes part in protests against coronavirus restrictions?
Would the employer have to give the employee unpaid leave each time? This could be costly for the employer, as it might then have to provide for a replacement of the work of the employee on unpaid leave again and again.
Warning in Case of Breach of Duty
The legal difficulty lies in distinguishing between the participation in a legal demonstration and the violation of official directives, such as maintaining social distance and wearing a mouth and nose cover. The question of the adequate legal consequences will keep labour lawyers busy for a long time until answers are found.
No warning can be issued for legal behaviour in the spare time. The case is different if the employee violates the orders of the authorities when participating in a demonstration. In this case, the employee commits an administrative offence. Now, an administrative offence in private only has labour law consequences if there is a connection to the activity carried out at work. If official directives are violated, an employer can argue that the employee represents a danger to colleagues and third parties, if any, so that in fact there may be a connection. As a consequence, this behaviour would justify a warning.
The foregoing shows that termination, even more so termination without notice, is generally not the means of first resort when employees violate measures to contain the pandemic. If an employee violates orders at the workplace, a warning should always be issued for such a violation. In case of recurrence, the employer can then resort to termination. Whether ordinary or extraordinary termination then depends on the individual case. Attending a protest against coronavirus restrictions does not in itself constitute a breach of duty; the employer cannot prohibit participation. It will also probably not be legally enforceable to require subsequent testing. However, since the employee then represents a danger to colleagues and possibly also to third parties, unpaid leave could prevent this danger.
If an employee violates official directives when participating in a demonstration, also this violation can only in the rarest of cases be sufficient to give notice immediately. In addition to unpaid leave as mentioned above, a warning should be issued regarding the employee's conduct on the grounds that the employee has violated collateral obligations under the employment agreement. In case of recurrence, dismissal could then be considered.