BAG NZA 1994, 1080 (2 AZR 617/93)
23 June 1994
Translated by:
Raymond Youngs
Professor Basil Markesinis


The defendant employed the claimant on the 1st February 1991 as an outdoor worker for dressings and cotton wool. A period of six months probation was agreed in the employment contract during which the employment relationship could be ended by both sides on one month's notice terminating at the end of the month. The defendant ended the employment relationship on the 30th April 1991 by a letter of the 21st March 1991 and released the claimant from work. The claimant made claims against the defendant for compensation because of premature termination of the employment relationship by a lawyer's letter of the 4th April 1991. (...) After no agreement was reached about the claims, the claimant sued for a declaration that the termination was ineffective. The claimant asserts that the termination had only been made because of his homosexual tendencies.

The Arbeitsgericht rejected the claim. The claimant's appeal was unsuccessful. The claimant's appeal in law succeeded.


The appeal in law leads to quashing of the appeal court judgment and reference back, in which connection the senate has made use of the option in § 565 (1) sentence 2 of the Civil Procedure Code (ZPO).

The reasons of the Landesarbeitsgericht for its decision were in substance as follows: (...) Even if it were assumed that termination had only been effected because of the claimant's homosexuality, it was effective. It was not invalid under § 134 of the BGB, because the exercise of the claimant's general right of personality was not violated by the termination. The termination was merely realisation of a risk to which every employee was exposed in the first six months of his employment. (...)


The appeal in law is well founded.

1. (...)

2. The judgment of the Landesarbeitsgericht cannot however be maintained on the basis of the facts which it hypothetically assumed ie that the termination had only been made because the claimant's homosexuality and of the reasoning given by it. The Landesarbeitsgericht did not examine whether, on the facts assumed by it, the termination violated the general principle of good faith (§ 242 of the BGB). In this connection, according to the view of the senate, there is no need - and this is something which the Landesarbeitsgericht takes into account as a matter of priority - to discuss whether the termination is even to be regarded in these circumstances as contrary to good morals (§ 138 of the BGB) (see on the strict prerequisites of § 138 of the BGB: BAGE 16, 21 (25) = NJW 1964, 1542 = AP no 5 on § 242 of the BGB Termination (I)). Likewise it is necessary to go into the question of the direct application of basic rights claimed by the claimant (Art 1 para 1, Art 2 para 1, Art 3 para 3 and Art 12 of the Basic Law) (derived from Kühling, AuR 1994, 126 (127) with further references).

a) The provisions of § 242 of the BGB are only applicable to a limited extent alongside those of § 1 of the Protection against Termination Act (KSchG). The KSchG has concretised and conclusively regulated the prerequisites and effects of the principle of good faith so far as protecting the existence of the employee's place of work is concerned, and his interest in its maintenance. Circumstances which must be assessed within the framework of § 1 of the KSchG, and which could cause termination to appear to be socially unjustified, do not fall to be considered as violations of good faith. A termination violates § 242 of the BGB, and is invalid, if it contravenes the principles of good faith for reasons which are not covered by § 1 of the KSchG. The same applies for terminations to which the KSchG does not apply as the six months waiting period under § 1 (1) of the KSchG is not fulfilled because, for these cases, the protection against termination excluded by statute would still be preserved via § 242 of the BGB (references omitted). Typical situations of termination contrary to good faith are, in particular, inconsistent behaviour on the part of the employer, expression of termination in an offensive form or at an inappropriate time (BAGE 28, 176 (184) = NJW 1977, 1311 = AP no 1 at § 1 of the KSchG 1969 Waiting Period (at II 2); BAG NZA 1986, 97 = NJW 1987, 94 L = AP no 88 at § 626 of the BGB (at II 4)).

b) The principle of good faith (§ 242 of the BGB) forms a constraint on content which is immanent in all rights, legal situations and legal norms. The exercise of a right violating § 242 of the BGB or the exploitation of a legal situation by going beyond the right is regarded as impermissible according to the above case law. The requirements which arise from the principle of good faith can only be decided here in the light of the circumstances of the individual case. On this legal basis the Bundesarbeitsgericht has applied § 242 of the BGB in those cases, amongst others, where termination notices were given within the probation period and where the KSchG therefore did not apply. (...) On the other hand, the Bundesarbeitsgericht (BAGE 44, 201) ruled that a notice given within the probation period was ineffective under § 242 of the BGB as well as § 102 (1) of the BetrVG (Constitution of Businesses Act) because the employer had dismissed the claimant on the basis of unconfirmed hearsay evidence by a witness, without giving him a prior opportunity to comment, on suspicion of consumption of hashish. This termination was expressly stated to be ineffective because of violation of § 242 of the BGB. In BAGE 61, 151, in the case of an employee who had made a suicide attempt after an infection with HIV and was therefore incapable of work (with associated costs of continued wage payments) for several months, § 242 of the BGB was examined, and its application in the actual case only denied because it involved termination grounds which were typically to be assessed within the framework of § 1 of the KSchG. On the basis of the employer's economic considerations, which were held to be defensible, it was accepted that termination was not contrary to good faith. Finally, reference must also be made to the decision of the senate of the 12th July 1990 (BAG NZA 1991, 63) in which termination is likewise discussed from the point of view of a violation of good faith, and with regard to the point in time when the termination arrived. Breach of good faith was not derived from this alone as - so the Senate argues - an infringement of justified interests of the recipient of the termination had to be present as well, in particular of regard for his personality. The seventh Senate (BAG NZA 1986, 97) had already decided to the same effect in a case in which a termination was assessed which was delivered on Christmas Eve without the justified interests of the recipient of the declaration, in particular for respect for his personality, being thereby established as violated.

c) In continuation of this case law (references omitted), from which only extracts have been reproduced, the senate considers even a termination given during the probation period to be contrary to good faith if it is given when (according to the claimant's convincing submissions, assumed by the Landesarbeitsgericht to be correct) the employee's performance has been confirmed to be good, and only because of the employee's homosexuality.

aa) It has already been referred to in the introduction (at II 2a) that the principle of good faith forms an immanent limitation to the content of all rights, legal situations and legal norms. That also applies for the power of formulation exercised by means of termination, which - and this is inherent in the law about termination as a whole - is subject to judicial control (references omitted). In the concretisation of such a general clause as the principle of good faith, regard must be had, according to the consistent case law of the Federal Constitutional Court (BVerfGE 7, 198 (204f); BVerfGE 42, 143 (148); BVerfGE 89, 214), to the basic right guarantee of private autonomy, the right to regard for human dignity and the general right of personality (BAGE 89, 214 is also similar to this). Since § 242 of the BGB refers quite generally to custom (Verkehrsitte) as well as good faith, a concretisation is required from the courts which measures up to conceptions of value which are primarily determined by the decisions of principle in the Constitution. In the interpretation and application of this provision regard is to be had to the basic rights as "guidelines" (BVerfGE 7, 198 (206)).

bb) It follows from this first of all that it is not inconsistent with custom (Verkehrsitte) and good faith if the defendant, as the person entitled to receive the services which the claimant is obliged to render, makes use within the probation period of the right of termination granted to it by the principle of private autonomy. The formulation of legal relationships by the individual in accordance with his own will is a part of the general freedom of action. Art 2 para 1 of the Basic Law guarantees private autonomy as "self-determination of the individual in legal life" (BVerfGE 89, 214 = NJW 1994, 36). Private autonomy is however necessarily limited. Rights of equally ranking holders of basic rights are ranged against its exercise. The claimant has for his part a right to the free development of his personality (Art 2 para 1 of the Basic Law).

This basic right also incorporates the freedom to formulate one's private sphere in the area of sex life according to one's own decision (BVerfGE 60, 123 (146) with further references). It is true that the termination does not directly affect the claimant's right to choose a partner of the same sex and to live with this person in a relationship similar to marriage. But the termination takes away his economic base for this reason only, in conditions unequal to those applying to a heterosexual orientated employee, whose employment the defendant would not have terminated in the probation period where he worked successfully alongside others. It therefore restricts the possibility of conducting his life as he chooses because he has homosexual tendencies. As the Landesarbeitsgericht assumes the facts to be correct, namely that the claimant's employment was only terminated because of his homosexuality, and the claimant amplifies this to the same effect, even though he had fulfilled the work-related expectations placed in him, this amounts to disciplining of his sexual conduct. (...) In this situation, possibly justified needs on the part of the defendant - for instance because of the effects of the claimant's way of life on work with fellow employees, the peace of the business, customer relationships - cannot be accepted. The defendant has also not relied so far on anything of this kind. The duties of an employee against his employer end in principle at the point where his private sphere begins.

The formulation of the area of private life is outside the employer's sphere of influence, and is only limited by duties under the employment contract in so far as private behaviour has an effect on the business realm and leads to disruption there (references omitted). If conduct outside employment does not affect the sphere of duties under the employment contract, the employer is not entitled to express his disapproval about matters which have become known to him from the employee’s private sphere by effecting termination of the contract. This is all the more so when these matters can be classified as part of the employee's intimate sphere. The employer is not called by the employment contract to be keeper of the morals of the employees who are active in his business (LAG Düsseldorf DB 1969, 667 (668)). In the present case it must be further assumed in the claimant's favour - in the absence of elucidation of the facts by the Arbeitsgericht and the Landesarbeitsgericht - that the defendant has "sounded out" the claimant by means of a fellow employee and, using the information obtained in this way relied on the freedom to terminate. This represents a disregard of the claimant's personality - the fellow employee concerned is said to have described himself as "used" - and therefore contains an exploitation of a legal position which is contrary to good faith (as in BAGE 10, 207) or - in the words of the Federal Constitutional Court - an implementation of the "right of the stronger party". This use of private autonomy represents an impermissible exercise of a right: § 242 of the BGB. (...)

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