On 24 June 2015 the Higher Labour Court Düsseldorf (Landesarbeitsgericht Düsseldorf) ruled that it is not possible for an employer to exchange the grounds for dismissal within legal proceedings, if this would cause the dismissal to have an entirely new character (docket number: 7 Sa 1243/14).
Unlike the situation where a previously unknown but pre-existing ground for dismissal is relied on later – held lawful by the German Federal Labour Court (Bundesarbeitsgericht) – the employer here replaced the grounds for the dismissal, even though they were already known to him by the time he terminated the employment relationship. According to the Higher Labour Court Düsseldorf, the employer is obliged to issue a new dismissal in such a situation.
So far, the German Federal Labour Court has left the question open, whether the replacement of the grounds of dismissal within legal proceedings is possible. However, the German Federal Court (Bundesgerichtshof) has decided in a case concerning an extraordinary termination of a managing director, that such a replacement is lawful, if the grounds for dismissal already existed by the time the dismissal was issued and the company wasn’t aware of its existence for more than two weeks (docket number: II ZR 18/03).
This is also relevant in companies where there is a works council. If a dismissal acquires an entirely new character, there has to be a new hearing of the works council. Otherwise the dismissal would be invalid due to the violation of the works council’s rights under sect. 102 of the Works Constitution Act (Betriebsverfassungsgesetz).