Dismissal due to low performance

The German labour courts place quite high demands on the dismissal of a low performer. The employer must prove that the employee either performs less than 2/3 of the work of a comparable, average employee, or that he or she deliberately withholds the possible work performance.

A labour court has now confirmed a dismissal due to poor performance in the call center sector.

Labour Court Bremen-Bremerhaven, Judgment of 14 December 2023 (no. 2 Ca 2206/23 and 2 Ca 2207/23)

Dismissal without notice due to working time fraud

Two employees were dismissed without notice due to low performance. The Bremen-Bremerhaven Labour Court ruled that both dismissals were effective.

The employees were telephone operators of a citizens' hotline of the city of Bremen. The employer accused the employees of taking a particularly low volume of telephone calls. To this end, the employer evaluated the telephone behaviour of the two employees on four days in the period from March to May 2023. The workers council had previously expressly agreed to the evaluation.

During the period in question, the employees had only worked telephone times of between 30 and 35 percent and between 16 and 33 percent of their scheduled working time. In contrast, telephone times of 60 percent were expected. The employer then considered this to be working time fraud, and dismissed both employees without notice.

The employees took legal action against the dismissals, arguing that these were invalid. They submitted that, firstly, the evaluation of telephone behaviour was inadmissible as it was not covered by the shop agreement. Furthermore, neither a warning nor a hearing had taken place beforehand.

The Labour Court disagreed and dismissed the claims. The comparatively low telephone times indicated a deliberate neglect of the work obligation in breach of the contract and could no longer be explained by mere underperformance.

The Labour Court left open the question of the permissibility of data collection and analysis, referring to the case law of the Federal Labour Court. According to this, data intended to prove that the employee intentionally breached the contract can be used even if the data collection does not fully comply with data protection regulations. This was the case here.

Conclusion/practical tips:

The decision shows that dismissals can have a chance of success if the reduced performance can be measured to a certain extent. The ruling provides some pointers for activities in the call center sector.

However, the court-proof presentation of low performance still requires careful preparation by means of monitoring and logging of performance deficits over a longer period of time.

In the event of low performance, a prior warning should also be considered to substantiate the reasons for a possible subsequent dismissal in the event of a repeat offence.

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