The identification of a security risk in accordance with the Security Screening Act (Sicherheitsüberprüfungsgesetz, SÜG) can justify the termination of an employment relationship by means of a condition subsequent agreed in the employment contract. This is the result of a recently published decision by the Lower Saxony Regional Labour Court (Ref.: 10 SLa 287/25 of 06.01.2026).

The plaintiff, a Russian-German dual national with distant relatives in Russia, worked as a decision-maker at the Federal Office for Migration and Refugees (BAMF). His employment contract contained a resolutory condition in the event that the simple security check required by law in accordance with Section 5 (6) sentence 1 AsylG in conjunction with Section 8 SÜG revealed a security risk. § Section 8 SÜG revealed a security risk. After the applicant refused to provide a declaration that he would not travel to the Russian Federation as part of the check, the Federal Office for the Protection of the Constitution determined that there was a security risk. The BAMF then terminated the employment relationship.

The Regional Labour Court confirmed this approach. It stated the following reasons: A condition subsequent is permissible if it relates to a safety-sensitive activity and the determination of a safety risk in accordance with Section 5 SÜG actually means that the employee can no longer be employed. The labour courts do not have to review whether the security risk was rightly identified. This is solely a matter for the competent authorities under the SÜG and the administrative courts. However, the prerequisite is that the employer has not itself brought about the occurrence of the condition in breach of trust. This was not the case here, as the BAMF had informed the claimant of the necessity of the travel waiver and had given him sufficient opportunity to comment.

The decision makes it clear that public employers can protect themselves with a corresponding clause when hiring for security-sensitive activities if, for example, a necessary security check has not yet been completed at the time of hiring. It is crucial that the condition is clearly formulated in the employment contract, that the employee is made aware of it before the contract is concluded and that the employer does not provoke the fulfilment of the condition itself. The legality of the content of the risk assessment cannot be independently reviewed under labour law. This decision is also informative for private employers in the safety-related sector.

The judgement is not yet legally binding. An appeal to the Federal Labour Court has been permitted due to its fundamental importance