## Facts

- The plaintiff worked for the defendant, a florist, in a floral shop.
- The plaintiff learned that he had contracted AIDS and later attempted suicide.
- After the suicide attempt, the plaintiff informed the defendant that he had AIDS and that he would be unable to work for an unspecified period because of the attempt.
- The defendant terminated the plaintiff’s employment shortly thereafter.
- Under German dismissal-protection law, an ordinary dismissal can be set aside as “socially unjust,” but generally only if the employment relationship has lasted at least six months.
- The plaintiff had not been employed for six months at the time of the termination.
- The plaintiff sued, claiming the dismissal was unfair and tied to his medical condition.
- The trial court upheld the dismissal, reasoning that the termination was not issued in bad faith.
- The plaintiff appealed to the German Federal Labor Court.

## Issues

1. Whether the statutory protection against “socially unjust” ordinary dismissals applied where the employee had not yet completed six months of employment.
2. Whether, despite the inapplicability of the six-month dismissal-protection threshold, a termination connected to the employee’s AIDS diagnosis could be void as contrary to good faith (§ 242 BGB) or public policy/morality (§ 138 BGB).
3. Whether constitutional equality and personality interests (including protections reflected in Art. 1 and 2 GG and the non-discrimination norm in Art. 3(3) GG), as mediated through general clauses like § 242 BGB, required invalidating the dismissal on these facts.

## Decision

- The court held that the statutory “socially unjust dismissal” review was unavailable because the plaintiff had not yet reached the required minimum period of employment.
- The court ruled that a dismissal connected to an AIDS diagnosis is not automatically void as immoral under § 138 BGB.
- The court further ruled that such a dismissal is not automatically void as contrary to good faith under § 242 BGB.
- In applying § 242 BGB, the court treated good faith as a general limitation on the exercise of rights and required a balancing between the employer’s contractual freedom (including freedom to terminate) and the employee’s dignity and personality interests.
- On the record presented, the court concluded that the dismissal was not invalid under these general clauses, and the employee’s challenge did not succeed.

## Legal Principles

- Statutory dismissal protection that allows courts to set aside an ordinary dismissal as “socially unjust” generally requires at least six months of employment; if that threshold is not met, the statute’s review mechanism does not apply.
- Outside the statutory dismissal-protection regime, an employer’s termination decision remains subject to narrow control through civil-law general clauses, including § 242 BGB (good faith) and § 138 BGB (immorality/public policy).
- § 242 BGB functions as a general standard limiting the exercise of private-law rights and can require case-specific balancing of the employer’s freedom of contract and workplace decision-making against the employee’s protected dignity and personality interests.
- A termination linked to AIDS (or HIV/AIDS-related illness) is not, by itself, enough to establish immorality (§ 138 BGB) or bad faith (§ 242 BGB); invalidity depends on the concrete circumstances showing an abusive, discriminatory, or otherwise unacceptable exercise of the termination right.
- Claims framed as discrimination or retaliation cannot be established solely from the fact that the employer acted after learning of a serious medical condition; the employee must show additional facts indicating an impermissible motive or an abusive manner of exercising the right to terminate.

## Conclusion

The German Federal Labor Court upheld the dismissal, ruling that the employee could not invoke statutory “socially unjust” dismissal protection because he had worked less than six months, and that the AIDS-related termination was not automatically void under general civil-law limits such as good faith or public policy on the facts presented.


Opinion of the German Federal Labor Court, 43 N.J.W. 141 (1990)