Intentional coughing by work colleagues - justified dismissal without notice?: LAG Düsseldorf, 27.04.2021 - 3 Sa 646/20:

Does deliberately coughing at a work colleague justify his summary dismissal? The LAG Düsseldorf was to rule in a case from spring 2020 that an employee can be dismissed without notice if he deliberately coughs at a colleague at close range, expressing the hope that the colleague will get Corona. Nevertheless, the dispute was decided in favour of the employee. The case concerned an action for unfair dismissal brought by an employee who was accused of multiple violations of Corona protections. He was even alleged to have deliberately "coughed" at a work colleague and made comments to the effect that he hoped the latter would contract Covid-19. The defendant introduced a pandemic plan, which included measures such as keeping at a distance, hygiene precautions and covering the mouth and nose when coughing or sneezing. These measures were also communicated in the company.

The plaintiff is said to have expressed his opposition to these measures and repeatedly failed to comply with the hygiene measures and distance rules. Finally, on 17 March 2020, the plaintiff, a young tension mechanic, deliberately coughed at a colleague at a distance of about half an arm's length to a whole arm's length. He then told the colleague that he hoped that he would catch Corona.

The plaintiff claimed that the distance to the colleague was sufficient when he coughed. Moreover, on the day in question, he had only felt an urge to cough and had had to cough spontaneously.

The defendant extraordinarily terminated the employment relationship without notice on 03.04.2020 (with the consent of the works council).

In the opinion of the LAG, the facts described by the defendant could have justified immediate dismissal, because anyone who deliberately coughs at a work colleague at close range and says that he hopes that the colleague will catch Corona is in serious breach of his duty of consideration.

Finally, the employee's action for protection against dismissal was upheld because the employer (defendant) could not prove the facts alleged against the plaintiff for 17 March 2020.

Action for protection against dismissal for cause

In the case of termination without notice, the employee should definitely seek legal advice with regard to the chances of success of a Legal action against dismissal. In most cases, the chances of success in dismissal protection proceedings are quite good, for example because the dismissals are invalid for reasons of form or content. Depending on the case, the payment of a Severance pay reinstatement or a conversion into an ordinary dismissal can be achieved. In most cases, reinstatement is not desired by employees. However, there are many conceivable cases where a claim for reinstatement should be filed, in individual cases for tactical reasons alone. However, the time limit for filing an action is always essential and must be observed. § 4 Dismissal Protection Act. It shall be three weeks from receipt of the notice of termination.