The Federal Labour Court docket (Bundesarbeitsgericht) dominated on 29 April 2021 (docket quantity: 8 AZR 267/20) that, in precept, the employer might declare reimbursement of required investigation prices from the worker. Topic to reimbursement are mandatory prices incurred by the intervention of a specialised regulation agency if the employer has commissioned it to conduct investigations into the worker primarily based on a concrete suspicion of great misconduct. The employer should substantiate the need of the prices in every case by exhibiting that the prices are primarily based on an inexpensive suspicion which has been confirmed. Within the particular case, the Federal Labour Court docket rejected the employer’s declare for damages for investigation prices of a regulation agency as a result of the need of the investigative measures towards the worker weren’t sufficiently substantiated and confirmed in court docket.
Though the Federal Labour Court docket units excessive requirements for the reimbursement of investigation prices brought on by the worker’s misconduct, it additionally provides sensible recommendation for such a declare. Consequently, with applicable preparation, reimbursement could be potential in particular person circumstances sooner or later.
Whistle-blowers supplied details about a possible extreme misconduct of the plaintiff. On account of this particular suspicion, the employer determined to provoke an investigation, carried out by an exterior regulation agency. The investigations revealed that the worker had dedicated numerous breaches of obligation to the detriment of the employer with monetary damages within the six-figure vary. In his operate as buying supervisor, the plaintiff allowed himself to be invited by enterprise companions to Champions League matches and in addition made a number of journeys with out official trigger which he charged to the employer. Following the preliminary investigations, the plaintiff was given extraordinary termination with out discover. After the plaintiff’s motion for cover towards dismissal was rejected by a closing court docket determination, the employer demanded compensation for the prices of the regulation agency that had investigated the worker’s alleged breaches of obligation. The Labour Court docket dismissed the counterclaim for damages, the second occasion upheld it to the extent of EUR 66,500.
The Federal Labour Court docket dominated that an employer’s declare for damages typically extends to the prices incurred because of the intervention of a specialised regulation agency if the next circumstances are fulfilled:
- the regulation agency was commissioned to research the worker on the event of a concrete suspicion of great misconduct on the a part of the worker, and
- the worker was convicted by the investigation of a severe intentional breach of contractual obligation or a tortious act, and
- the character and extent of the investigative measures had been mandatory for an inexpensive, economically-minded employer below the circumstances of the person case.
Due to his intentional behaviour the worker couldn’t seek advice from the supply which regulates that within the first occasion of the labour court docket proceedings every social gathering has to bear its personal lawyer’s charges (part 12a Labour Court docket Act [Arbeitsgerichtsgesetz]). The Court docket said that in such a case the appliance of this provision was inappropriate.
As well as, the Court docket specified that not solely inner investigations are essentially required. Such investigations will also be carried out by exterior consultants, for instance if there will not be sufficient capacities or not sufficient educated staff inside the firm itself.
The court docket’s necessities for proving the need of the investigative measures are extremely related in follow. On the one hand, the time spent, and the measures taken, should be clearly specified with regard to every alleged conduct. As well as, the recoverable prices of fact-finding should be distinguished from authorized recommendation.
Good preparation and documentation in the course of the investigation are important for profitable reimbursement. What’s required is an actual documentation of the investigative measures in keeping with kind and scope, for instance in a desk. Every investigative step must be recorded with the related suspicion, the time spent for investigations and the outcome. As well as, it must be proven whether or not any outcomes of the investigation have given rise to additional investigations.