Because an employee refused to be tested for coronavirus infection, he was dismissed for misconduct. The employee filed a wrongful termination suit with the Hamburg Labor Court and was successful. The court ruled that the dismissal for misconduct was invalid. However, this does not mean that other similar cases will necessarily have the same outcome.
Employee refuses employer's corona tests
The employer provides passenger transport services in Hamburg. The employee is employed there as a driver. The employment contract stipulates that the employee must strictly adhere to the driver's manual.
The employee was on zero-hour short-time work. He was scheduled to return to work on June 1, 2021, after the short-time work period ended. In the meantime, the employer has updated the manual. According to this manual, drivers are required to conduct regular COVID-19 self-tests. It also stated:
“On your first day of work, a supervised on-site test will be conducted before the start of your shift.”
The employee refused this test before starting work on June 1, 2021. He also refused to take the test kits provided by the employer. The employer subsequently granted the employee unpaid leave from work for June 1, 2021.
This behavior of the employee was repeated on 02.06.2021 and 03.06.2021 and ultimately resulted in a ban from the premises and the Termination of employment.
Refusal of Corona tests: Dismissal for behavioral reasons unlawful
The court first addressed in detail the question of whether the order to conduct rapid coronavirus tests in an employment relationship was lawful. It answered this question in the affirmative with detailed reasoning and emphasized that the order was covered by the employer's right of direction. The court stated that the extent of the interference with the employee's physical integrity was extremely minimal, as only a swab was taken from the front of the nose.
The interference with personal rights associated with the testing was also of a minor intensity. Whereas the employer, due to its duty of care under § 618 German Civil Code in conjunction with Section 3 (1) ArbSchG can demonstrate a clear overriding interest in employees' health.
Despite the legality of the test order by the employer, the order issued by him was dismissal for misconduct invalid. The employer did not issue a prior warning to the employee, or the court could not be certain that a warning had been issued. The court considered the prior warning to be absolutely necessary, as it was a milder measure “to prevent the infringement of the copyright infringement [incomplete], to avoid “𝘐𝘧𝘩𝘦𝘴𝘵𝘩𝘦𝘴𝘵 𝘣𝘦𝘯𝘥”.
Refusal of corona tests can lead to dismissal
In my opinion, the court made the correct decision, and its reasoning is also convincing. Termination is always a last resort. It cannot be ruled out that a prior warning would have brought about a change in the employee's behavior. A correct warning signals to the employee: "Your employment relationship is at stake."
This demonstrates once again how important a warning is in an employment relationship. And not just any warning, but one that is effective. Employees often have good grounds for appeal against dismissal if the employer has not issued a warning beforehand. We know this as Lawyers for terminations only too well.
However, the ruling does not provide a free pass to ignore employer testing orders. Quite the opposite. The court categorically considered the refusal of COVID-19 tests a breach of employment contract. The dismissal ultimately failed due to a lack of proportionality, not due to a lack of breach of employment contract obligations.