In April 2020, a company announced an exceptional termination without notice. The worker concerned had violated the security distance, coughed on a colleague and expressed, he may get corona. The company accepted this as a conscious threat to the health of the employees and released the employee. Whether the man had the coronavirus at this time had not been clear.
The dismissed worker then sued against his former employer. In this case, the LAG Düsseldorf ruled in favor of the applicant, as the defendant employer could not comply with the burden of proof after taking evidence. However, it also confirmed that the conscious coughing onto an employee with the intention of infecting him with the coronavirus can be a reason for an extraordinary termination without notice (Urt. V. 27.04.21, Az. 3 SA 646/20). The evidence had therefore been necessary because the employer's version of the facts could justify a termination without notice. A warning would not have been enough here. However, the employer could not prove the facts he claimed. That's why the dismissal protection suit was successful.
The LAG has not approved the revision.