Suspicion-Based Dismissal: The Two-Week Deadline Keeps Running During Holiday
Updated: Aug 23
An extraordinary dismissal must be declared within two weeks of the point at which the decisive facts become known (§ 626 Abs. 2 BGB, German Civil Code). Where the allegation lands on the table while the employee concerned is on holiday, a conflict arises: investigate, or leave the rest period untouched. The Bundesarbeitsgericht (Federal Labour Court) has now resolved that conflict and rejected any general ban on making contact during holiday (judgment of 4 December 2025, case no. 2 AZR 55/25).
1. The Case: Six Weeks Until Dismissal
The employee had worked as a train manager since 2006 and, under the applicable Tarifvertrag (collective bargaining agreement), could not be dismissed with ordinary notice. On 24 April 2023 he was on duty together with a colleague. Three days later she accused him of sexual harassment.
At that point he was first on a rest period and then on Erholungsurlaub (statutory annual leave) until 21 May 2023. He had been given a company mobile phone, but outside his working hours he was under no obligation whatsoever.
The employer waited for his return. On 22 May 2023 it put the allegations to him and invited him to a personnel meeting; the employee replied in writing and denied them. On 2 June 2023 the Betriebsrat (works council) was consulted on a dismissal without notice and, in the alternative, on an extraordinary dismissal with a run-off period, based both on the alleged act and on the suspicion. Notice was given by letter of 6 June 2023.
2. The Decision: Investigating With the Required Speed
The Kündigungsschutzklage (unfair dismissal claim) succeeded. Both dismissals failed under § 626 Abs. 2 BGB, without the allegation itself ever becoming relevant.
The Second Senate stays on its established line: the deadline begins only once the person authorised to dismiss has reliable and complete knowledge of the decisive facts. Until then the employer may investigate and hear the employee concerned, but must do so promptly. There is no rigid limit for this; for the hearing, around one week is generally sufficient. Only special circumstances justify a longer period.
Where the employee is absent because of holiday or illness, the interest in swift clarification and the duty of consideration must be weighed against each other. According to the Senate, no blanket prohibition on approaching the employee during that time follows from either the Bundesurlaubsgesetz (German Federal Leave Act) or EU law. What matters remains the circumstances of the individual case.
3. The Deciding Point: Not a Single Attempt at Contact
The case turned on one detail. The employer had known of the allegation since 27 April 2023, yet made contact only on 22 May and gave notice on 6 June. Throughout the absence of several weeks it made no attempt at all to reach the employee, although telephone, email and post were available to it.
There was therefore nothing to support the assumption that the investigation had been conducted with the required speed. No special circumstances justified the wait. By the time the dismissals were received, the two-week deadline had already expired.
For employers, this shifts the risk. Anyone who stays silent out of consideration for the holiday protects the employee's rest and may lose the dismissal in the process. On the other side, every suspicion-based dismissal is worth examining along its timeline before the allegation itself is disputed.
Unsure whether the deadline in your case is still running?
Whether an extraordinary dismissal holds is, in practice, often decided by the calendar.
If you are an employer who has to investigate a serious suspicion, or an employee who has received a dismissal without notice, we offer you a short, free initial assessment. In that conversation we will place your situation in context and clarify which steps make sense now.
