The case: a departing employee and poached colleagues
The employee had resigned herself, effective 31 March 2026, to join a competitor. In November 2025 the employer came to suspect that she had tried to recruit two specific colleagues for her new employer. On 11 November 2025 it heard her out (Anhörung), she denied everything — and the employer believed her and decided to take no action.
From 25 November and 6 December 2025 new information surfaced: she had allegedly tried to lure away two further colleagues. On 8 December 2025 the employer terminated the employment with immediate effect (außerordentliche fristlose Kündigung). The employee sued — and won before the Arnsberg labour court: by judgment of 31 March 2026 (1 Ca 877/25) the court held the summary dismissal invalid.
The decision rests on two pillars worth knowing well beyond this particular case: the two-week deadline of § 626(2) BGB and the warning requirement flowing from the principle of proportionality.
Two weeks to decide — § 626(2) BGB
The German Civil Code is blunt: termination for good cause may only be declared within two weeks, and the period starts when the party entitled to terminate learns of the facts relevant to the termination. Under the settled case law of the Federal Labour Court the clock starts once the employer has reliable and reasonably complete positive knowledge of the circumstances — knowledge that allows it to decide whether it wants to continue the employment (Federal Labour Court, judgment of 23 January 2014, 2 AZR 582/13). The purpose is protective: the employee should quickly know whether the employer will act on an incident, and an employer who waits shows that continued cooperation is not unbearable after all.
The Arnsberg court applied this mechanism without mercy. Since the employer heard the employee on 11 November 2025, it knew the accusations concerning the first two colleagues by that day at the latest. That it believed her and dropped the matter was read merely as a changed assessment of how serious the accusations were — not as a lack of knowledge. The court’s conclusion: the dismissal of 8 December 2025, insofar as it relied on those same events, came too late.
That left the second set of accusations — the poaching attempts the employer only learned about from 25 November 2025. For those the deadline was met. And here the second pillar of the judgment took over.
A warning before dismissal — proportionality
Summary dismissal is always a measure of last resort. For conduct-related breaches the courts as a rule require a prior formal warning — an Abmahnung is dispensable only where it is clear from the outset that the employee will not change the behaviour even after a warning, or where the breach is so severe that tolerating it even once is obviously — and recognisably for the employee — out of the question (Federal Labour Court, judgment of 10 June 2010, 2 AZR 541/09).
The Arnsberg court did accept that actively luring away colleagues during an ongoing employment relationship can be a breach of duty an employer need not accept. Two circumstances decided the case, however. First — the employment was ending on 31 March 2026 anyway, so in the court’s view the employer could reasonably be expected to answer the new accusations with a warning rather than instant dismissal. Second — after the hearing of 11 November 2025 the employer never told the employee it would not tolerate such conduct. A dismissal based on later but essentially identical events was therefore disproportionate.
A judgment one can argue with
The decision raises serious doubts — and both sides of a dispute should know them. An employer who believes a denying employee assumes the alleged incident simply did not happen. It is hard to speak of “reliable and reasonably complete positive knowledge” of a reason for dismissal in that situation — and without such knowledge the two-week period does not even start. The deadline of § 626(2) BGB is the statutory embodiment of forfeiture by delay (Verwirkung) — an employer who gives an employee the benefit of the doubt hardly creates the impression of tolerating a breach it believes never occurred. The warning point invites similar pushback: expecting an employer to announce consequences for conduct it does not believe took place sounds detached from reality, and the imminent end of the employment says nothing about the gravity of the breach itself.
Whether the judgment is final is not known — an appeal may be pending. The practical lesson stands regardless: labour courts are prepared to start the clock at the first hearing and to punish employers for not clearly announcing consequences. Employees can build a defence on that. Employers should not test it on themselves.
What this means for employees
- Reconstruct the timeline of the employer’s knowledge. What did it know, since when and from whom. If more than two weeks passed between learning the facts and the dismissal, the dismissal has a serious weak spot.
- An earlier hearing or disciplinary talk works in your favour. If the employer knew the accusations, heard you out and let the matter rest, it should not return to the same events weeks later.
- Ask about the warning. For conduct-related accusations the lack of a prior Abmahnung is one of the most common reasons summary dismissals fail — especially where the employment was about to end anyway.
- Mind the three weeks. An unfair-dismissal claim (Kündigungsschutzklage) must be filed within three weeks of receiving the written notice — after that even a defective dismissal generally becomes effective.
What this means for employers
- Treat the hearing as the start of the clock. Even if you believed the employee, a court may find you knew the accusations on the day of the talk. Decide and communicate within two weeks.
- If you let a matter rest, leave a record. A short letter stating that the conduct, if confirmed or repeated, will trigger consequences up to termination costs little and removes the argument that won this case.
- New facts call for a new, fast reaction. When further incidents surface, act immediately and consider whether a warning must come first. The closer the end of the employment, the more strictly a court will judge going straight to summary dismissal.
- Document internal findings. Who established what and when — in court it is the employer who must prove the two-week deadline was met.
Summary dismissal on your desk — what to check first
The date the notice was received — the three-week claim period runs from it. Written form signed by an authorised person. The timeline: since when did the employer know the accusations and did it act within two weeks. Earlier talks or hearings and their outcome. Whether a warning (Abmahnung) was issued and what it covered. A written demand for the reasons of the dismissal — § 626(2) sentence 3 BGB grants that right. Securing evidence: correspondence, witnesses, notes of meetings.
Frequently asked questions
I received a summary dismissal in Germany. How much time do I have?
Three weeks from receipt of the written notice to file an unfair-dismissal claim with the labour court (Kündigungsschutzklage, § 4 KSchG). After that even a defective dismissal generally becomes effective. It is the single most important deadline of the whole case.
The employer had known the accusations for a long time. Can it still dismiss me summarily?
Termination for good cause is only permitted within two weeks of the employer gaining reliable and reasonably complete knowledge of the facts. Once that deadline has passed, only ordinary notice with the regular notice period remains — and that too is subject to judicial review.
Does a summary dismissal always require a prior warning?
For conduct-related breaches, as a rule yes. A warning is dispensable only where it obviously would not change the employee’s behaviour or where the breach is so severe that tolerating it even once is plainly out of the question. Those are exceptions the employer must be able to justify.
Can trying to poach colleagues for a competitor justify summary dismissal?
Actively luring away co-workers while the employment still runs can breach the duty of loyalty and, depending on the circumstances, may even justify instant dismissal. In the Arnsberg case the dismissal failed because of the missed deadline and the missing warning, not because the conduct was found acceptable.
The employer heard me out, believed me and dropped it — then dismissed me for the same thing. What now?
According to the Arnsberg labour court such a dismissal is out of time as to the known accusations and, as to new but similar events, disproportionate without a prior announcement of consequences. The judgment has drawn criticism and its finality is unknown, so the defence should rest on all available arguments at once.
This overview draws on the judgment of the Arnsberg labour court of 31 March 2026 (1 Ca 877/25, finality unknown), the judgments of the Federal Labour Court of 23 January 2014 (2 AZR 582/13) and of 10 June 2010 (2 AZR 541/09) as well as § 626 BGB and § 4 KSchG. This article is for information purposes and does not replace legal advice in an individual case.