According to the court, the employer should have conducted a social selection process regarding the employees who were retained. This applies even if those employees were only going to be employed for a short additional period. The selection of which employees would be retained must be based on social criteria, not solely on performance or other factors, in accordance with the principles of the Dismissal Protection Act (KSchG).
An effective warning is a prerequisite for a conduct-related dismissal. It is only dispensable if it is evident that the employee will not change their behavior in the future or if the misconduct was particularly severe.
According to the opinion of the Federal Labor Court, a criminal offense in the private sphere may entitle the employer to issue a person-related dismissal under § 1 para. 2 KSchG.
In order to encourage the hiring of employees, even in small businesses, the legislature has, in recent years, made the applicability of the Dismissal Protection Act dependent on an increasing number of employees in the respective businesses. However, employees of small businesses are also protected from arbitrary dismissals.
