LAG Dusseldorf: “Corona cougher” as grounds for termination

Judgment of the Regional Labour Court in Dusseldorf of 27 April 2021 in Case No. 3 Sa 646/20

An employee may be dismissed with immediate effect when he deliberately coughs on a colleague at close range and remarks that he hopes that the colleague catches the coronavirus.

Facts of the case

The employer accused the employee in question of repeatedly failing to comply with the hygiene measures in force in the workplace, such as covering the mouth and nose when coughing or sneezing and maintaining a safe distance. Previously, the employee indicated – according to a further allegation – that he “did not take seriously” the operational measures to counteract the coronavirus. Finally, the employee coughed on a colleague at close range and said something like, “Chill, you won’t get the coronavirus.” The employer issued an extraordinary notice of termination of employment with immediate effect. The employer did not know whether the employee was infected with the coronavirus when it issued the notice of termination.

The judgment

The employee brought an action against unfair dismissal and presented different facts to those alleged by the employer. He claimed that he felt a tickle in the back of his throat on the day in question and suddenly had to cough. He claimed he maintained sufficient distance from his colleague. The Regional Labour Court found for the Plaintiff. The employer was unable to prove a breach of duties in the specific case. As the employer has the burden of proof for a ground for dismissal, this failure was to the employer’s detriment.

Consequences for practice

Those who disregard hygiene rules within the company risk consequences for their employment. The Regional Labour Court emphasised that the facts outlined by the employer – assuming they were true – could in principle justify the termination of the employment relationship with immediate effect. Those who intentionally cough on a colleague at close range in the hope that they catch the coronavirus will be in breach of the duty to treat colleagues with consideration inherent in the employment relationship.

Practical tip

The judgment is an example of the potential new conflicts in the employment relationship arising due to the corona pandemic. Depending on the severity of the infringement of the hygiene rules, the reaction can be anything from the issue of a written warning to extraordinary termination of employment. Employers are therefore well-advised to document all infringements of the hygiene rules in detail to be able to prove the conduct in the event of any dispute.

Anne-Kathrin von Dahlen