The Tarantula Termination

An employment tribunal in Watford, England ruled on 24 October 2023 that a claimant, Mr. Jonathan Richardson, had been unfairly dismissed. On 18 January 2024 he was awarded GBP 22,571 for loss of earnings until 6 July 2023 and additionally GBP 705 per week from 7 July 2023 until reinstatement. 

This would not be particularly noteworthy had it not been for the facts which are so striking, we have considered how this would play out if all the fun had happened in Germany.

Facts

The claimant had been employed by West Midlands Trains Ltd as a train driver since 4 April 2018. In mid-2022, the claimant talked with one of his driver colleagues about spiders. At some point during the conversation, she indicated a certain dislike of or squeamishness in relation to spiders and other creatures such as snakes.

In early August 2022 the claimant placed a tarantula’s shed exoskeleton as a prank in said colleague’s pigeonhole causing her to be distressed. After this incident she told the claimant that she did not want to receive objects of that nature and called him a “f****** t**t”. Similar language is said to be unexceptional in his exchanges with fellow colleagues, and he has been the subject of pranks himself. This is why he perceived the conversation as “normal banter” and did not take her words literally. On a later occasion around 12 September 2022, he placed a shed snakeskin as another prank in her pigeonhole. She was once again distressed when she found it and reported the incident to her employer by email on 14 September 2022. 

Following an internal investigation during which he presented a written letter of apology which he intended to be transmitted by his employer to his colleague, he was dismissed on 24 November 2022 for gross misconduct on the basis he had bullied another colleague.

(based on Watford Employment Tribunal decision:
Employment Tribunals: Richardson v West Midlands Trains Ltd - Judgment
Employment Tribunals: Richardson v West Midlands Trains Ltd - Judgment (Financial Award))

How would this play out under German law?

It seems likely that, like in England, a dismissal either with or without notice would both be deemed invalid under the relevant German laws, the German Protection Against Dismissal Act. The only remedy in Germany would then, similar to this particular case in England, be reinstatement with back-pay, but no further damages.

The claimant clearly breached his contractual duty of loyalty pursuant to Section 241 Paragraph 2 of the German Civil Code. In general, the company has an interest in ensuring that the harmony in the company is not disturbed and its employees treat each other with respect and work well together. Case law has developed criteria to determine when the contractual duty of loyalty is breached due to bullying: generally, the legally protected rights of the “victim” must be violated multiple times and systematically by the “offender”. Not only the employee’s wellbeing is considered legally protected but also his or her general right of privacy in accordance with Article 2, 1 of the German Constitution. 

Despite this, a dismissal without notice i.e. for gross misconduct is very hard to prove; it is lawful only in cases of serious breach of duty due to which the continuance of the employment relationship until the expiry of the notice period is impossible for the employer. It is very doubtful that the behaviour of the claimant would meet these strict requirements.

A dismissal with notice is generally only lawful if less severe means than a dismissal were not available to the employer. In the case of dismissal based on misconduct, it is usually required that the employer has previously warned the employee for a similar misconduct. After the first incident the claimant had not been warned by his employer that placing objects of that nature can lead to a dismissal.

German case law has consistently ruled that a warning is not required if a change of behaviour cannot be expected from the employee or if it is such a serious breach of duty that it cannot be tolerated by the employer and the employee is aware of its unlawfulness. The English employment judge was convinced that the employee considered both incidents as pranks. The conversation after the first incident was perceived by the claimant as “normal banter” not understanding the level of his colleague’s upset. The employee was not aware that his behaviour was unlawful. Since he tried to apologize afterwards, it is possible that a prior warning would have been sufficient to change his behaviour.

Key differences to England

In Germany the works council, if established, must be informed before every dismissal, including the reasons for dismissal. Any dismissal that is given without consulting the works council is null and void. The works council must then notify the employer in writing within a week giving its reasons if the works council has objections to a dismissal. If the works council notified the employer about his objections and if the employee has brought an action under the German Protection Against Dismissal Act for reinstatement, the employer may be required to continue to employ the employee after expiry of the notice period until a final court decision.

In England, the (successful) claimant was awarded some compensation plus, in this case reinstatement. In Germany, a successful claimant will generally always be reinstated (and be paid back-pay) but receive no further damages.