From November 2021 until March 2022, German law required a vaccination certificate, proof of recovery or testing on a daily basis (so-called 3G rule) to enter the workplace, if there would be physical contact with other employees or third parties.
The Berlin Labour Court had to rule on a case where an employee of the state Berlin, who was working in a court and therefore came into physical contact with others, submitted a proof of recovery which was fake. As a result, he was able to enter the court without providing a test or vaccination certificate. After it was found that the proof was fake, the employee was terminated without notice.
In its decision, the court found that this termination was valid. The necessary good cause was met as the employer was obliged to only let employees access the workplace who complied with the 3G rule. As this was crucial for the health and safety of everyone in court, the use of a fake proof of recovery constitutes a severe breach of contractual duties. A prior warning was not necessary in this case, as it was obvious to the employee that the employer would not tolerate such behavior.
Key Action Points for Human Resources and In-house Counsel
- As long as the submission of either a vaccination certificate, a proof of recovery or an up-to-date test was mandatory for entering a workplace, providing a fake proof of recovery could justify a termination without notice. It should be noted that there is no such obligation currently.