Germany: Dismissal due to Refusal of Coronavirus Rapid Testing usually requires a Prior Warning

The case before the Hamburg labour court concerned an employer operating in the passenger transport industry. The employer employed several drivers, including the plaintiff, who took legal action against his dismissal. Due to the Coronavirus pandemic, the employer temporarily shut down its operations completely and put the employees on short-time work. In April 2021, the employer started to resume his operations. As a protective measure, employees were instructed to regularly test for the Coronavirus before work. There was no statutory testing requirement in place at the time. On his first day of work after short-time work, the plaintiff refused to take part in the testing procedure. After the same happened on the following days, the employer terminated the employment relationship. The employee filed a lawsuit against the termination, claiming that the employer could not oblige him to take Coronavirus tests and could hence not validly terminate the employment based on this refusal to comply.

Even though there was no statutory testing requirement at that time, the Hamburg labour court found that the employer was entitled to instruct mandatory testing towards the employees. The labour court ruled that the employer was entitled to require the employees to regularly take tests before starting work. This was covered by the employer’s right to specify the work-related employee’s duties by giving specific directions. The law provides that the employer is entitled to specify the content, place and time of work by reasonable discretion (boundaries: employment contract and collective agreements). This also includes the implementation of compulsory Coronavirus tests in the company. By refusing to take the tests, the employee hence violated his duties arising from the employment relationship as the employer was entitled to instruct compulsory testing. However, the employee nonetheless won the first instance court case, because the labour court considered a written warning would have been required before the dismissal was issued. A prior written warning was necessary as a milder means and not dispensable due to special circumstances. Even if the success of a written warning seemed to be questionable in the present case, according to general principles, employers are required to issue a warning first before termination the employment for reasons of conduct.

In the meantime, detailed statutory provisions on testing obligations in the workplace came into force. Nonetheless, the ruling of the Hamburg labour court remains relevant for employers who instruct protective measures beyond statutory obligations and who may want to keep testing obligations in place also in case the statutory obligations are lifted in the future. The court ruling strengthens the rights of these employers to dismiss employees who refuse to comply, but at the same time clarifies that a prior written warning remains necessary unless in exceptional circumstances.

Key Action Points for Human Resources and In-house Counsel 

• According to local case law, employers are entitled to instruct compulsory Coronavirus testing towards their employees, also when this is not mandatory under the law. Co-determination rights of the works council need to be observed.
• In the event of a violation of Coronavirus protection measures, a dismissal of the concerned employee is possible. However, this usually requires a prior written warning, depending on the severity and extent of the violation.