The two-week deadline: why speed is crucial

In German employment law, there is a clear time limit for termination without notice: according to Section 626 (2) of the German Civil Code (BGB), employers must act within two weeks of becoming aware of a possible reason for termination. Within this period, they must examine the facts of the case and give the employee the opportunity to comment on them. The hearing is mandatory and a central component of a fair procedure.

In this particular case, however, the employer waited until the employee returned from vacation. This proved to be his undoing, as the deadline expired in the meantime. Instead of trying to reach and hear the employee while on vacation, the hearing was postponed until after the vacation.

The BAG has now clarified that this waiting is not permitted. Employers must take action and at least attempt to contact the employee in good time. If this does not happen, the dismissal is usually invalid due to failure to comply with the notice period – even if there was actually a good reason for the dismissal.

Contact on vacation: allowed or taboo?

Many employees assume that they are generally not allowed to be contacted while on vacation. According to the Federal Labor Court, there is no absolute ban on contacting employees on vacation, neither in the German Federal Leave Act (BUrlG) nor in EU law. A brief contact to clarify a possible termination issue may therefore be perfectly permissible.

This means that in special exceptional cases – for example in connection with a possible dismissal – the employer is permitted to make contact during the vacation, for example by telephone or email. This is because the employment relationship continues during the absence – and with it certain ancillary obligations. However, it is crucial that this contact is moderate and does not significantly impair the recreational purpose of the leave.

Why the hearing plays such an important role

A central point in employment law is the principle: “Listen first, then dismiss.” The employee must have the opportunity to comment on allegations before a decision is made. This applies in particular to so-called suspicious dismissals. If the required hearing is not carried out correctly or is scheduled too late, the entire dismissal may be invalid – regardless of whether the accusation was justified or not.

The BAG clarifies in its ruling: If an employee is to be heard, this must generally take place promptly. The period granted for this must not be longer than a week or so, unless there are special circumstances.

Such special circumstances may exist, for example, if the employee is actually unavailable, is in a remote region with no means of communication or contacting them would jeopardize the clarification of the facts. However, mere absence on vacation is not automatically sufficient for this.

What the ruling means for employers

The ruling significantly tightens the requirements for employers. They must ensure that they can react quickly even when employees are absent. This includes, in particular, using contact options and clarifying the facts quickly.

Simply waiting until the employee is back from vacation is no longer an option. Anyone who remains inactive for several weeks in the event of a serious suspicion and does not even attempt to contact the employee concerned is taking a considerable risk: The two-week period under Section 626 (2) BGB may expire during this time. Once this period has expired, even a serious breach of duty can no longer justify termination without notice, as the employee’s vacation does not constitute a blocking period.

What employees should know now

The decision is also important for employees. It shows that you are not completely “switched off” when you are on vacation, at least from a legal perspective. In certain situations, it may be necessary to be available for a short time or to respond to an inquiry.

At the same time, however, the ruling does not mean that employees have to work on vacation or should be constantly available. Rather, it is about finding a balanced solution between relaxation and necessary communication in exceptional cases.

Concluding remarks

In summary, the decision shows that one thing counts above all in employment law: timely and correct action. The BAG’s ruling makes it clear that vacation is not a “legal vacuum”. Employers must also fulfill their obligations and adhere to deadlines during this time. Employees, on the other hand, do not have to be available at all times, but should be able to respond in important cases. Those who observe these principles will avoid legal risks and unnecessary conflicts.