Extraordinary Dismissal for Kissing a Colleague against her Will

A person who attempts to kiss a female colleague against her will on a business trip and actually kisses her violates his duty to consider the legitimate interests of his employer in a significant manner. Such conduct is suitable to justify termination without notice. This was decided by the Higher Labor Court of Cologne (Landesarbeitsgericht Köln, LAG) in a ruling of April 1, 2021 (8 Sa 798/20).

The employee had been employed by the employer as an EDI (Electronic Data Intercharge) manager since 1996. In April 2019, the company had hired a colleague who had previously worked for the company as a working student. While she was working as a working student, the employee had once grabbed her shoulders from behind, whereupon she had told him to stop. During a two-day team retreat at the end of September 2019, at the hotel bar in the evening, the employee tried several times to put his jacket on his colleague despite her expressed refusal.  This prompted another employee who was present to ask him to stop. Later, he followed his colleague on the way back from the hotel bar to her room, although - when he declared that he wanted to come to her room   she had refused. In front of her room, he pulled her towards him and tried to kiss her. After the colleague pushed him away, he pulled her towards him again and actually managed to kiss her. The colleague pushed him away again, opened her room door, quickly went inside, and locked the door. In a subsequent WhatsApp message, he wrote to her that he hoped she was not angry with him. After the colleague reported the incident to her supervisor, the employer terminated the employment relationship without notice, alternatively with due notice, after hearing the employee. The Cologne Labor Court dismissed the complaint against this dismissal after taking evidence by hearing several colleagues. The Cologne Higher Labor Court (LAG) confirmed this decision in the appeal proceedings. In particular, there was no need for a warning, as it must have been obvious to the employee that he had crossed a red line with the sexual harassment, which made it intolerable for the employer, whose obligation it was to protect its female employees from sexual harassment, to continue the employment relationship.

(Source: press release of the Higher Regional Court of Cologne of April 1, 2021)