Employee effectively not working during notice period

Question

Location: Germany

We have an employee that was laid off because his performance was unsatisfactory. His notice period is 3 months. We were hoping, he would at least do some trivial, but time-consuming tasks in that 3 months.

However, it looks like he suddenly has lost the ability to produce more than 10 lines of code that would compile. He does come to work on time, he doesn't browse random sites or do anything not work-related except visiting the restroom. He is never drunk during working hours, but he seems to sleep with his eyes open, waking up in random intervals to type some line of the code that doesn't make any sense.

Is there any way to put him under the pressure to either do anything useful or face immediate termination? Or he's smart enough not to get any legal reason for doing that, and we should simply let him not come to the office and search for new work instead, so that he doesn't block a desk, which is what he probably aims for?

Answer 1

I have some legal training in employee law in Germany (but IANAL and this is not legal advise).

Your guess is probably right. By doing a minimum of work, he is bullet-proofing himself against further actions on your part. The bar for immediate termination is rather high in Germany, and if your company has a Betriebsrat and/or is unionized, even more so. And since you already fired him, there is even less cause for an immediate termination - you would have to be in and prove a situation where it is objectively unbearable for you to let him sit out his notice period. Essentially, as long as he isn't stealing things or outright refusing to work, an immediate termination would only open him the door to sue you and take a nice severance package.

I also don't advise threatening him with or taking revenge with a bad reference ("Arbeitszeugnis"). That paper is supposed to represent his entire working time, not just the last few weeks, and an unfair reference can land you in court as well.

Legally speaking, there's not much you can do. You already dropped your largest bomb on him, you have nothing to threaten him with as long as he does a small amount of work, comes in on time and otherwise satisfies the letter of his employment contract, and he has made clear through his behaviour that he has no intention of playing nice until the end - which is entirely understandable.

What you can do is offer him a deal. Including some things others have already answered:

• You can simply send him home on full pay, that way at least you get the desk free. Note that you can do this one-sided, it does not need his agreement. Note that you can not so easily forbid him from coming anyway - as long as he has an employment contract, you need to check with your lawyer on the details of forbidding him entrance ("Hausverbot").
• You can offer him an exchange. Half the remaining salary if he agrees to shorten the notice period and end his contract immediately. This requires both parties to sign the paperwork.
• You can give him very specific tasks to do, especially if he still needs to hand over work, document code or something else that matters to you. As the employer, you have the right to give him tasks and he cannot refuse if they are within the limits of his working contract. ("Weisungsbefugnis")
• You can also offer him a deal for the last weeks, maybe something like every day he will get coding work that should take him about half a day to finish and when he's done he is free to go - this would give him more time for jobhunting and give you more work than now - win-win.

Answer 2

So you fire someone for not being productive and then expect him to be productive?

Joke's on you.

He was already poorly motivated, now he's even less motivated. You should have expected this and just put him on inactive status.

Answer 3

The best course of action is to let him stay home at this point. It is no use to expect him to be productive while on a working notice, given that his performance was already lacking. Give him pay in lieu of notice and free up a desk.

Answer 4

You sacked someone and let them keep access to your network?

If you are lucky, all he's doing is being ineffective. If you're unlucky, he's writing a script that will anonymously execute in a few month's time and delete all your backups.

Never, ever, ever let someone with a cause for grievance against you anywhere near anything important. You lock them out of the system, you sack them, you pay them their notice period and severance, you stand with them while they collect their personal belongings, you walk them out the front door, you collect their key, you shake their hand and you wish them luck.

Sadly, this is incredibly harsh on the 99% of employees who will do the right thing but the risk from the 1% is just too large.

As a commercial plumber who's had disgruntled employees fill drains with concrete and drill 3mm holes in shower risers (the bit after the taps so it only leaks while someone is having a shower), take it from me.

Answer 5

Why not just give him 3 months pay as per contract and tell him to go home.

Problem solved.

And it will help the rest of the team as well.

Answer 6

Let me get this straight: you terminated this employee for unsatisfactory performance...

... and now you are expecting him to perform to your satisfaction.

Just... stop and think about that for a moment. In fact, think about it for a good long while. Think hard about it - really exert your brain.

Then, stop wasting everyone's time, and tell the former employee to go home and enjoy their 3 months of paid holiday.

Answer 7

You might motivate this person to do some actual work by giving him a task that can be done in less than a day/week when working at a normal pace. When the task is finished he can go/stay home for the rest of the day/week. Some might say this way of handling it rewards bad behavior. However if you just want him to do some stuff and don't get hanged up about it being unfair or setting a bad example/precedent, I think it might be a good tactic.

Answer 8

As the other answers point out, he does what he is legally obligated to do:

• come in on time
• do work (however much he does) his contract obligation of hours/week
• do nothing as "revenge" for being culled from your working force

It is in the employees best interest to do exactly that - it removes your ability for early termination wich is quite difficult under german law.

If he is smart he will never agree to any kind of earlier severance because in german law this might give him a several months strike from recieving unemployment payment.

If you, as worker, -willingly- admit to no longer being employed (Aufhebungsvertrag) the german Arbeitsamt will freeze your unemployment payment because you "willingly choose to not work anymore". So you are out of work and do not get money while scurrying for a new job.

Suggestions of "how to pressure him" by promising a "bad" Arbeitszeugnis or give him shittier jobs then he had only give him grounds to sue you - so don't.

Send him home, let him get into job searching and pay his last months salary (not shortened - there is no legal way to do that). You might want to check with a lawyer if you can withhold money he would normally get from working late/overnight/weekends - there is a good possibility that that is not possible and you would have to pay them as if he normally worked because you do not provide him the ability to work by issuing a Freistellung.

Source: Background of working laws, not a lawyer.

Answer 9

As someone who works in Germany, and who switched jobs already, I can explain some things and give a possible solution:

First, the long notice period is relatively common (up to 3 months) and how "useful" it is depends was the employee fired, did he quit himself, what the situation between the employee and employer is, does the employee have another job lined up etc...

If you quit, you might want to move to the next job ASAP, but it's useful for the employer that you finish your own work and make a seamless transition to another colleague (benefits the employer).

If you got fired, as in this situation, you probably don't have a job lined up and waiting, so this brings you 3 months of time to actually find a job while still having income (benefits the employee).

The situation can be resolved quite easy but it depends of the contract, as for ex. I had in all my contracts the option to finish the notice period early if it was OK for both me and the employer. So, you could talk to the employee and try to come to an agreement where the notice period is shortened to 2 months, or even 1. This however depends on the employee since he needs to agree to that also.

When I switched my last job, I was mostly done with work already and didn't have anything lined up, so I agreed with my ex-employer to shorten the notice period, since this benefited both sides.

Answer 10

I was in quite a similar case some months ago. I say to you, what might be in his mind.

He is now shocked and he is likely working very hardly behind the walls to find his next job. This distracts his focus from his work.

He knows that it is not okay. The danger of a bad Arbeitszeugnis is very deeply in his mind, the problem is that it does not mean that he can do too much. He must find his next job ASAP, and he does not know yet, how long will it last!

As you fired him, I think you knew well, that replacing him means some cost and some instability of your processes.

Make the things clear with him. Make a - mutually satisfiable - list of the things what he needs to do at last. Probably he won't make all of it, but most of it, yes.

You can also expect a sudden increase in his work quality if he has already got his next job. With luck, you can even spare some months of salary, if he can start his next job quickly.

You can use the threat of a bad AZ. Probably you can not fire him on the spot ("fristlose Kündigung"), because not working too much is not enough reason for that, but it does not mean that you can not threat him with it.

There are also other ways to motivate him. For example, as far I know, you can send him back to home any time ("Freistellung"), possibly with a decreased salary. Depending on his family situation, it might be even a more worse threat for him than a fristlose Kündigung.

Note: the threat of a bad AZ might be a joke for you, but it is very strong threat for him! Particularly if you can believably prove before a court, that he was bad at the end and he has not a legal insurance ("Rechtsschutzversicherung").

Actually, the leave in peace is much more important for him as for you. Talk with him, cooperate with him, have clear expectations and be nice with him if he follows what you agreed.

Answer 11

You can send the employee home with full salary since its the most painless way to go.

However, under German jurisdiction, its also possible to terminate his contract without or with a very short notice period if the performance of an employee is clearly below his capabilities. Be advised that you will have to have proof (witnesses) of his performance / behaviour and that you might have (depending on the circumstances) to have given him one or more written notices (Abmahnungen) for it before you're allowed to terminate the contract.

Also, you are obliged to write a benevolent but truthful testimonial, which in this case would contain remarks on the employees poor performance.

But in any way, you should carefully weight the risk of being dragged to court and have to pay the fees for a trial against the gain of not having to pay the salary.

Answer 12

In the US legal system there is a concept called "Double Jeopardy." The idea is that you can't be tried for the same crime twice, using the same evidence.

For example, upon being convicted (or aqquitted) of robbing a convenience store, a person cannot be retried for the same robbery.

In your case, your organization has punished the employee with termination due to lack of performance. Now you notice that the performance of the employee has dropped. Either:

• You lied about his performance, as it was the easiest item to terminate him over with poor evidence. His prior performance was adequate, and his current performance is not adequate.

or

• His performance was inadquate in the first place, and now you suddently desire it to be adequate based on the motivation of being fired.

or

• The reasons behind his termination include other items not being discussed in this forum, and now you are attempting to compel the employee to do stuff after you have punished him as fully as you can by terminating his employment.

In short, this plan of action to "motivate him" is starting to look a lot more like a plan of vindication or harassment.

If you wanted a relationship where you continued to provide guidance in improving his performance, it's called employment.

Answer 13

I think this is a self-answering statement, no?

Is there any way to put him under the pressure to either do anything useful or face immediate termination?

Yes, getting threatened with immediate termination instead of being afforded delayed termination could force them to do something useful. Notice how I said "force" instead of "motivate".

If you wish to motivate then the only possible solution is to un-fire them if they complete tasks x, y, and z.

Overall, I don't understand your question. I read it as "Is the floor made out of floor?"

Answer 14

Let me share my opinion on how you could actually extract code from this disgruntled employee. It is actually the stolen opinion of my incredibly smart ex ex boss.

There are stick people and carrot people. This guy is a carrot person. Prize them, offer a hefty money bonus, spend an hour 1 on 1 to ask what they would like, do it.

Or just pay the 3 salaries and send them home. One of the two.

Answer 15

This is why the longer the notice period the more ridiculous it is, and why most of the world has notice periods in the 2 weeks-1 month range. The way an employment contract works is: I do work, I get paid. I stop doing work, or my work is not good enough, I get fired, and I stop getting paid. I want to keep getting paid, so I keep doing good work.

The way a 3-month notice period works is: The company has already fired me, so I've stopped being paid (or at least I have a set date where, no matter how good my work is, I stop getting paid). The company is contractually obligated to keep me employed for the duration of the notice period so, no matter how bad my work is, they can't stop paying me (unless they find some way out of the contract). In this way, you've removed both the positive feedback for doing good work (continually getting paid), and the negative feedback for doing bad work (threat of stopping being paid). So, precisely what, might I ask, reason does an employee who has been laid off have for doing good work, or any work at all really? The fact of the matter is, there is none, modulo the contract stating "you must continue doing good work or we'll fire you even faster" (which, it seems, your contracts do not state, or else you would be doing that instead of asking this question, because this is precisely the case in which to exercise such a clause).

So, to solve your problem, you basically have 2 choices:

1. You can ignore this employee. He continues to come into work, put in his absolutely minimal effort, and gets paid for 3 months, because that's what he's legally entitled to according to the contract. Just find some way to occupy his time.

2. Find some other way out of the contract, by paying him time in lieu or giving him vacation, or something. Talk to him and ask him what he wants. I'm sure wasting 8 hours per day for 3 months in a job he's clearly clocked out of is not his idea of a good time either, so he'll probably be amenable to negotiation. Be aware though, that if your contracts do not contain a "buy-out" clause which you can exercise to force the employee to leave without serving their 3-month notice, you're negotiating from weakness; he can simply "no-sir" you and force you to pay him the full 3 months' pay as he is contractually entitled to.

And then, you should go to HR and vehemently explain to them why a 3-month notice period is patently ridiculous and they need to do something about it to prevent cases like this.