One boob grab does not a termination make. BAG 20.11.2014 - 2 AZR 651/13

Touching an employee's breast is indeed sexual harassment and in principle constitutes good cause for extraordinary dismissal. However, whether this is actually sufficient for dismissal in an individual case is a question of proportionality to be determined by the circumstances of the individual case.

The plaintiff, who was employed by the defendant as a car mechanic, met an employee of an external cleaning company in the changing rooms who was previously unknown to him. The two began a conversation, during which the employee first stood in front of the washbasin where the plaintiff was washing his face and hands and then stood next to the plaintiff himself. The plaintiff then said to her that she had nice breasts and touched her on one breast. When the employee explained that she did not want that, the plaintiff immediately left her alone.

The BAG first clarified that both the plaintiff's comment and the touching of the breast were unwanted, sexually determined behaviors that caused a violation of the employee's dignity and were therefore to be regarded as sexual harassment within the meaning of Section 3 (4) AGG.

Nevertheless, the defendant could reasonably be expected to continue to employ the plaintiff. The plaintiff had shown both by immediately letting go of the employee that he was able to immediately recognize his misjudgment of being flirted with and to act in accordance with this insight, as well as by pointing out that he had an inexplicable blackout, that it was only a one-time momentary failure that was foreign to the plaintiff's nature. The fact that the plaintiff was also not unwilling to change his behavior is evident from the immediate admission of his misconduct, although he could have denied it due to the one-on-one situation, the remorse shown, the letter of apology and the achievement of a victim-offender settlement with payment of compensation for pain and suffering, whereupon the employee also considered the incident to be over. A warning would therefore have been sufficient to positively influence the plaintiff's future behavior.

Regardless of this decision, sexual harassment remains a reason that in itself justifies termination without notice. In this case, it was only the particular circumstances of the individual case that led to the conclusion that the dismissal was not justified. If an employee has already become conspicuous in this respect on several occasions and has even been warned in this regard, termination without notice would have to be justified overall in this case.

Date: 20. Nov 2014