The Hamburg Higher Labor Court (Landesarbeitsgericht Hamburg) has confirmed previous case law that a custodial sentence may justify an ordinary termination (judgment of 7 July 2015, docket number: 6 Sa 14/15).
The employee in this case was given a custodial sentence of 4 years and it was not foreseeable if and when the sentence would be suspended for probation or if the employee would be given any privileges such as day-release. The Hamburg Higher Labor Court ruled that due to the length of the sentence the employer’s interests outweighed the interests of the employee.
As to the obligation to inform the works council prior to the termination, the court ruled that it is sufficient for the employer to inform the works council that he assumes that the employee will have to remain in prison and will not be given any privileges such as day-release. It is not necessary for the assumption to turn out to be true. The works council only has to be informed about the subjective evaluation of the employer at the time that the information is provided.