On the very evening of a personnel meeting lasting about one hour, an employee submitted an eight-page “memorandum”: over 120 spoken contributions from four participants in the correct order, including verbal turns of phrase, sentence fragments, and speech errors. His smartphone had been lying on the table during the meeting.

Reasons for the decision:

‍The smartphone alone does not constitute reasonable suspicion; however, when combined with the length and verbatim nature of the transcript, it does. The court considered the claim that the transcript was based solely on memory to be implausible. The secret recording violates § 241(2) of the German Civil Code (BGB) and the right to the spoken word (Art. 2(1) in conjunction with Art. 1(1) of the German Basic Law (GG); a criminal offense under § 201(1)(1) of the German Criminal Code (StGB)). The breach of trust was so serious that a written warning was unnecessary and continued employment until the end of the regular notice period was unreasonable. Before issuing the termination, the employer had communicated the specific details of the suspicion in writing and granted the employee until June 10, 2025, to respond.

Recommendation for employers:

1. Secure evidence immediately and document it with the date (original transcript, participants’ observations, location of the device).
2. Conduct the hearing in writing, specifying concrete grounds for suspicion; the deadline is generally no longer than one week—it suspends the two-week period under Section 626(2) of the German Civil Code (BGB) only if the matter is resolved promptly. This is often not the case.
3. Base the termination cumulatively on both the alleged offense and the suspicion; consult the works council, if one has been established at the company, in accordance with § 102 of the Works Constitution Act (BetrVG) regarding both grounds and explicitly regarding the termination based on suspicion.
4. Monitoring of time limits: § 626(2) of the German Civil Code (BGB) begins upon knowledge of the relevant facts.

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