Dismissal Based on Suspicion During an Employee’s Vacation: Must the Employer Make Contact?

The German Federal Labour Court (Bundesarbeitsgericht – BAG) has clarified that an employee’s vacation does not create a general prohibition on contact (Judgment of December 4, 2025 – 2 AZR 55/25). Employers must investigate allegations that may justify a summary dismissal with due urgency. Simply waiting until the employee returns from vacation may cause the two-week deadline for dismissal to expire.

Facts of the Case: Employer Delayed the Employee Hearing

The claimant had been employed since 2006 as a train supervisor and specialist coordinator. Following allegations of sexual harassment, the employer considered issuing a summary dismissal, alternatively a dismissal with a notice period. The employee had been provided with a company mobile phone. However, there was no obligation for him to be available during rest periods or vacation.

Between April 27 and May 22, 2023, the employee was on a rest period and annual leave. The employer waited more than three weeks before inviting him to an employee hearing. Both the Labour Court and the Higher Labour Court found the dismissals invalid, prompting the employer to appeal to the Federal Labour Court.

Federal Labour Court: Employers Must Investigate Without Undue Delay

The Federal Labour Court dismissed the employer’s appeal. The decisive issue was the failure to comply with the two-week deadline set out in Section 626(2) of the German Civil Code (BGB). While an employer may conduct further investigations and hear the employee concerned before the deadline begins to run where only initial indications of misconduct exist, this principle applies only if the investigation is pursued with the necessary urgency and the hearing takes place without delay. As a general rule, the hearing of the employee should occur within a short period, typically not exceeding one week. Longer periods require special circumstances.

The Court further held that annual leave does not create an absolute prohibition on contacting an employee. Depending on the circumstances, an employer may attempt to reach an employee during vacation, provided such contact is reasonable and no exceptional circumstances speak against it.

Simply remaining inactive does not prevent the commencement of the statutory deadline. Since the employer in this case made no attempt to contact the employee for more than three weeks, the two-week period began to run and had already expired by the time the dismissals were issued. The Court also ruled that the time-barred summary dismissals could not be reinterpreted as ordinary dismissals.

Practical Guidance for Employers: Ensuring a Legally Sound Dismissal Based on Suspicion

• Strengthen Deadline Management: Once facts potentially justifying dismissal become known, employers should accurately calculate the two-week deadline and commence investigations immediately.
• Arrange the Employee Hearing Promptly: As a rule, an employee hearing should take place within one week. Even during periods of illness or vacation, documented attempts to contact the employee through known communication channels—such as telephone, email, messaging services, or mail—are generally permissible, provided the employer respects its duty of consideration.
• Assess and Document Reasonableness: If contacting the employee is impossible (for example, due to a remote hiking trip without communication access or unavailable contact information) or unreasonable under the circumstances, the employer should carefully document the reasons and continue investigations through alternative means where possible.
• Involve Works Council and Compliance Functions Early: Employers should ensure compliance with co-determination rights and maintain communication guidelines as well as standardized procedures for handling suspected misconduct.
• Observe the Requirements for Suspicion-Based Dismissals: A dismissal based on suspicion requires a proper employee hearing. The questions asked and the employee’s responses should be thoroughly documented, and a decision should be reached without unnecessary delay.

Conclusion: No “Right to Be Unreachable” During Vacation

The decision underscores the importance of strict compliance with the two-week exclusion period applicable to summary dismissals under Section 626(2) BGB. In practice, observance of this deadline is frequently a decisive issue in unfair dismissal proceedings.

The ruling makes clear that employees do not enjoy a general “right to be unreachable” while on vacation. Employers are expected to investigate allegations carefully but promptly and to make timely efforts to hear the employee concerned. Failure to do so may result in the dismissal being deemed time-barred and therefore ineffective, regardless of the underlying allegations.