Dismissal for coming late in Germany: When does it become a problem?

Many employees underestimate the consequences of being late. Regular or frequent lateness creates tension within the team and disruption in the workplace. The employer can issue a warning (Abmahnung) or, as a last resort, even dismiss an employee. In this article, we explain the consequences of a dismissal for coming late in more detail.

Key points at a glance:

• A dismissal for coming late is a dismissal based on conduct (verhaltensbedingte Kündigung). 
• It is only valid in cases of frequent or regular lateness (breach of duties). In most cases, written warnings are required, and the employer’s interest in terminating the employment relationship must outweigh the employee’s interest.
• A summary dismissal (fristlose Kündigung) for lateness is only justified in serious cases, where the employer cannot reasonably be expected to wait until the end of the regular notice period.
• Employees must record their working time correctly, even when they are late. False entries carry the risk of fraud (Arbeitszeitbetrug) and a summary dismissal.

Requirements for a dismissal for coming late

If the Protection Against Dismissal Act (Kündigungsschutzgesetz, KSchG) does not apply, an employer can dismiss an employee with no reason. This is the case, when the employee is working for less than six months or if he works in a small business (Kleinbetrieb) with 10 or less employees.

In case the KSchG applies (employment longer than six months and no small business), the employer can only dismiss an employee based on conduct (verhaltensbedingte Kündigung) under certain requirements:

1. requirement: breach of a contractual duty

Performing the work as agreed upon is a main obligation. Therefore, being late is basically a breach of contractual duties. The working hours are determined in an employment contract or a collective agreement (Tarifvertrag). But only significant or frequent breaches of coming late might lead to a written warning or in frequent cases to a dismissal.

The breach must be culpable, i.e. intentional or negligent. The misconduct – here, coming late – must be within the employee’s control. Here are a few examples:

• Traffic-related delays are the employee’s responsibility, since they bear the “travel risk” (Wegerisiko). Employees must factor in possible delays and plan ahead in order to arrive at work on time. 
• Employees are also responsible if they overslept due to alcohol consumption or taking medication.¹ 
• An employee is also responsible for being late if they do not hear the alarm, because they had to get up several times during the night due to their daughter’s illness. On another occasion, the same employee relied on a flat tyre on his car. The Federal Labour Court (Bundesarbeitsgericht) held the conduct is culpable and the dismissal was valid.²
• Exception: In some cases, even a non-culpable conduct can justify a dismissal based on conduct: So, the Federal Labour Court ruled that the employee had repeatedly breached his contractual duties. Even that he suffered from a mental illness, did not help, as the breaches were so frequent that the dismissal was valid.³

2. requirement: written warning

Before an employee can be dismissed for coming late, a (written) warning for the same or similar breach is required. The written warning should make the employee aware of his duties (i.e. coming on time in future) and should warn the employee that in case of another incident he must expect a dismissal. You will find more details in our article on written warnings (Abmahnung).

Written warnings can be dispensed with in a few exceptional cases. These include cases in which a change in behaviour cannot be expected in future despite a warning. Or cases in which the breach of duty is so serious that the employer obviously does not have to tolerate it.

3. requirement: balancing of interests

In the case of a dismissal for being late, the interests of the employer and the employee must be weighed against each other. The following criteria are the most relevant ones:

• Frequency of coming late: How often is the employee late?
• Severity of the breaches: the length of the delays: is it a few minutes or a few hours? Does the employee come so late, that it amounts to a “refusal to work” (e.g. the employee only turns up at the end of the shift)?
• Reasons for coming late: What were the reasons for being late? Are there exceptional circumstances (accident, moving houses, emergencies etc.)?
• Disruption to operations: How severely were operations affected by the lateness?
• Length of service: How long has the employee been with the company?
• Previous conduct: Has the employee fulfilled his duties so far? Is there a record for previous misconduct? 
• Positive prognosis for the future: Is there a risk that the employee will come late in future? Do the reasons for being late fall away, e.g. the employee moves closer to the workplace, or no longer has to care for a dependent relative or attend to other family obligations, etc.

The Labour Courts take all these circumstances into account in order to decide whether the dismissal is valid or not.

Summary dismissal for being late

A summary dismissal (fristlose Kündigung) is only justified in serious cases, where the employer cannot reasonably be expected to continue the employment relationship until the end of the regular notice period. Examples of serious cases: extreme frequency of being late, severe disruptions of the workflow. A summary dismissal may, for instance, be considered where the lateness is so significant and frequent that it is coming close to a refusal to work (e.g. arriving at the end of the shift). The requirements for such a dismissal are strict.

Legal steps

Employees have the option of filing a claim against such a dismissal (Kündigungsschutzklage) before the Labour Court. This must be done within three weeks of receiving the dismissal. Legal advice from the trade union or an employment lawyer is recommended.

The Court examines whether the requirements for a valid dismissal are met.

Duty to capture the correct working time

It is important to report the lateness to your supervisor and to apologise for it, or at least to put forward good reasons. Anyone who arrives late for work should under no circumstances enter incorrect working times in order to cover up. Such conduct can be assessed as working time fraud (Arbeitszeitbetrug) and is a criminal offence. Anyone who provides false information about their attendance risks a summary dismissal. In such cases, the employer can often act even without a prior warning.

Effects on unemployment benefits 

A dismissal for coming late is the result of an employee’s misconduct. For unemployment benefits (Arbeitslosengeld), this means there is “breach of insurance obligations” (“versicherungswidriges Verhalten”). If the dismissed employee had no “good reason” (“wichtiger Grund”) for the misconduct, there will be a waiting period for unemployment benefits (Sperrzeit) of up to 12 weeks. This means a reduction of unemployment benefits and a later payout.

1. Landesarbeitsgericht Köln 20.10.2008, 5 Sa 746/08 ↩︎
2. BAG 27.02.1997, 2 AZR 302/96 ↩︎
3. BAG 21.01.1999, 2 AZR 665/98 ↩︎