The Berlin Labor Court has deemed effective the immediate dismissal of an employee employed by a federal authority because of the accusation that he had intentionally touched the unclothed breasts of a female colleague without her consent.
The employee and local plaintiff’s colleague had complained to him about back pain. With her consent, the plaintiff, who was sitting behind the colleague, first touched her back, which was bare after pushing up her outer clothing and opening her bra, in order to feel it. The federal authority has alleged that the plaintiff then pushed his hands under her bra and placed them on her unclothed breasts without the consent of the colleague concerned.
After personally hearing the plaintiff and hearing the affected colleague as a witness, the labor court considered the plaintiff’s statement that the breasts were unintentionally brushed against the side while trying to close the bra again to be a protective claim. The colleague’s description, however, is credible. The labor court was unable to identify any evidence that the colleague wanted to wrongly accuse the plaintiff of sexual harassment. Because of the seriousness of the breach of duty, which may even be criminally relevant, a warning is unnecessary. The balancing of the interests of the employer on the one hand and the plaintiff, who can only be terminated on an extraordinary basis, on the other hand, is to the detriment of the plaintiff despite the 19-year duration of the employment relationship.
The plaintiff can appeal the judgment to the regional labor court. Berlin Labor Court, judgment of September 6, 2023, file number 22 Ca 1097/23; Source: Court press release
2023-09-23 12:25:34
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