{"id":6092,"date":"2022-03-20T11:40:57","date_gmt":"2022-03-20T10:40:57","guid":{"rendered":"https:\/\/smart-arbeitsrecht.de\/?p=6092"},"modified":"2024-05-10T11:44:12","modified_gmt":"2024-05-10T09:44:12","slug":"2g-modell-im-betrieb-fehlende-impfung-rechtfertigt-kuendigung","status":"publish","type":"post","link":"https:\/\/smart-arbeitsrecht.de\/en\/2g-modell-im-betrieb-fehlende-impfung-rechtfertigt-kuendigung\/","title":{"rendered":"2G model in the company \u2013 lack of vaccination justifies dismissal"},"content":{"rendered":"
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\"2G-Modell\"<\/figure><\/div>\n\n\n

The Berlin Labor Court recently had to decide a case in which the employer had introduced the 2G rule in the company. This requires employees to be vaccinated or recovered in order to work in the company. Because the plaintiff did not meet these requirements, the employer terminated her during her probationary period. The plaintiff's subsequent unfair dismissal claim was unsuccessful.<\/p>\n\n\n\n

Employer introduces \u201c2G model\u201d and terminates<\/h2>\n\n\n\n

The employee was to work for the employer on the occasion of the musical "Ku'Damm 56." For this purpose, the parties concluded two employment contracts, one relating to the rehearsals for the musical and the other to employment as a performer.<\/p>\n\n\n\n

The employer\u2019s employees have demanded that \u201c2G model\u201d in the workplace<\/strong> The employer then decided to introduce the 2G model. The goal was to minimize the risk of infection, protect employees, and ultimately fulfill their wishes.<\/p>\n\n\n\n

The plaintiff, however, had no vaccination against the coronavirus<\/strong> and had not recovered either. She offered her employer daily test certificates<\/strong> to prove that she was not infected with the coronavirus. The employer did not accept the employee's suggestion and terminated her employment during the probationary period.<\/p>\n\n\n\n

The plaintiff lodged an appeal against the dismissal Dismissal protection suit<\/a><\/strong> at the labor court.<\/p>\n\n\n\n

Berlin Labor Court considers dismissal justified<\/h2>\n\n\n\n

The Berlin Labour Court has decided<\/a>that the Employer\u2019s termination of probationary period is legal<\/strong> The employer had not violated the Prohibition of disciplinary action<\/a> out of \u00a7 612a German Civil Code<\/a> by reacting to the plaintiff's lack of vaccination with dismissal.<\/p>\n\n\n\n

According to Section 612a of the German Civil Code (BGB), an employer may not discriminate against an employee in an agreement or measure because the employee exercises his or her rights in a permissible manner (Prohibition of disciplinary action<\/strong>). The Court first of all emphasized that the exercise of fundamental rights must also be recognized as an exercise of rights within the meaning of this provision.<\/p>\n\n\n\n

The plaintiff also exercised her fundamental rights, as she declared to her employer that she wished to carry out her work without having been vaccinated. The plaintiff thus exercised her fundamental rights in the form of her General personal rights<\/strong> after Article 2 paragraph 1 GG <\/a>in conjunction with Article 1 paragraph 1 GG<\/a> as well as their Right to physical integrity<\/strong> pursuant to Article 2, Paragraph 2 of the Basic Law. However, the court held that the employer did not discriminate against her on this grounds.<\/p>\n\n\n\n

No discrimination \u2013 2G model causal for dismissal<\/h2>\n\n\n\n

There is a lack of Causality between exercise of rights and discrimination<\/strong>, because the exercise of their rights by the plaintiffs was not the main motive for the decision to terminate the employment. Rather, the decision to terminate the employment was based on the entrepreneurial decision<\/strong>to introduce and implement the 2G model in the company.<\/p>\n\n\n\n

This business decision cannot constitute a disciplinary measure, also because an inadmissible motivation of the employer cannot be considered if it is based on business considerations<\/strong> build.<\/p>\n\n\n\n

Furthermore, the employer\u2019s business decision cannot be legally challenged:<\/p>\n\n\n\n