Overview of the deadline for an unfair dismissal claim: What to consider?

An action for unfair dismissal is the most important means for employees to defend themselves against dismissal. However, it must be filed within three weeks of receiving the written notice of dismissal. Strict compliance with this statutory deadline is crucial. This article explains all the important aspects of the deadline for bringing an action for unfair dismissal for employees.

The most important information at a glance:

• A period of three weeks applies for bringing an action for unfair dismissal. The three-week period for bringing an action for unfair dismissal begins on the day after receipt of the written notice of dismissal.
• The date of receipt of a written notice of dismissal is decisive (i.e. verbal and electronic notices of dismissal are not valid).
• A dismissal that is not contested within the deadline is automatically considered legally valid – even if it was originally unlawful.
• Subsequent admission of an action is only possible in rare exceptional cases.

Calculation of deadline for an unfair dismissal claim

The calculation of the deadline for an unfair dismissal claim follows clear rules: The three-week period begins on the day after the written notice of dismissal is received (Section 187 of the German Civil Code (BGB)). The period ends three weeks later on the same day of the week (Section 188 BGB).

If this day is a Saturday, Sunday or public holiday, the deadline is automatically extended to the next working day.

The following examples illustrate how this is calculated:

1. Deadline on a working day: If an employee receives notice of termination on Monday, 5 May, the deadline begins on Tuesday, 6 May and ends on Tuesday, 27 May at midnight.
2. Deadline falls on a Saturday/Sunday: If an employee receives the notice of termination on Friday, 9 May, the period begins on Saturday, 10 May. The deadline would be Saturday, 31 May. If the deadline falls on a Saturday or Sunday, it is postponed to the next working day, in this case Monday, 2 June.
3. Deadline on a public holiday: If the notice of termination is delivered on Wednesday, 9 April, the deadline begins on Thursday, 10 April. The deadline for an unfair dismissal claim would be Thursday, 1 May (Labour Day). The deadline is postponed to the next working day. Note: In the case of public holidays, the public holiday regulations of the federal state in which the lawsuit must be filed apply.

Deadline for an unfair dismissal claim: when does it start?

The receipt of a written notice of termination is decisive for calculating the three-week deadline. Only a written notice of termination triggers the three-week deadline.

Verbal terminations or terminations by email, text message or messenger services are invalid and do not trigger the period for bringing an action. This also applies to terminations by fax or as a scanned document or with an ‘electronic’ signature (e.g. Docusign). These are invalid!

Start of the period for terminations with official approval

Special rules apply to the calculation of the three-week period if the termination requires the approval of an authority.

The basic ideais that employees with special protection against dismissal can rely on the fact that a termination cannot take effect without the approval of the competent authority. Therefore, they should only be required to respond to a termination once the official decision has been announced.

The three-week period therefore only begins upon notification of the official decision to the employee:

• In the case of severely disabled employees, the consent of the integration office is required.
• During pregnancy and after childbirth, termination may only be declared permissible by the authorities in special cases. However, according to case law, the special rule applies here too, namely that the three-week period only begins upon notification of the official decision.
• The same applies to termination during parental leave (Section 18 BEEG) and during family care leave.

In view of the complex time limits, it is advisable to consult a lawyer specialising in employment law in good time. They can ensure that all deadlines are correctly observed and that your rights are optimally represented in the event of termination.

Legal consequences of missing a deadline

If the three-week deadline for an unfair dismissal claim is missed, the Unfair Dismissal Protection Act stipulates that the dismissal is deemed to be legally valid from the outset. This has several serious consequences:

• The effective dismissal terminates the employment relationship at the end of the notice period.
• Irrevocable loss of the right to continued employment
• No longer possible to receive a severance payment
• No judicial review of the reasons for dismissal
• Loss of protection against dismissal

Exception: Employee can apply for subsequent admission of the action

If the employee has missed the deadline for bringing an action for protection against dismissal (three-week period), the law provides for the possibility of filing an ‘application for subsequent admission of the action’ (Section 5 KSchG). Subsequent admission of an action is only possible if an employee was ‘prevented from bringing the action in time despite exercising all due care that could be expected of them under the circumstances’. There must be no fault on their part. The application for subsequent admission of an action is an exception. The requirements are very high and are rejected by the courts in a large number of cases.

Examples:

• It is regulated by law that an action is admissible despite the failure to meet the three-week deadline if a woman only becomes aware of her pregnancy after the three-week deadline has expired for reasons beyond her control, Section 5 (1) KSchG.
• The illness of an employee alone is not sufficient. It can only justify an application for subsequent admission if the employee is not at fault. Example: The employee was prevented from bringing the action himself for medical reasons because he was unable to leave his home. Furthermore, he had no possibility of bringing the action through third parties (spouse, relatives, friends). This always depends on the individual case, the severity of the illness and the personal circumstances.
• A hospital or rehabilitation stay alone is not sufficient if the employee was not prevented from exercising his rights with the assistance of third parties.
• During a detoxification treatment, it depends on whether the employee was prohibited from having contact with the outside world during treatment or whether this was made unreasonably difficult.
• The absence due to holiday alone is not sufficient for subsequent admission of an action: (1) If the employee receives the notice of termination while on holiday abroad, they are obliged to use electronic means of communication to ensure that the action is brought in good time. If they wait until their return, the delay is their fault. (2) If the letter of termination is delivered to the employee’s home address during their holiday, the action may only be admitted at a later date if the employee was prevented from bringing the action in good time through no fault of their own. Fault was found to exist if the employee was absent for a longer period of time (in this case 6 weeks) and maintained his home mailbox without taking precautions to ensure that he would be informed of any mail arriving there in a timely manner.

Time limits: The application for subsequent admission must be submitted within two weeks of the obstacle ceasing to exist, but no later than six months after the original deadline.

Practical recommendations for employees

1. Receipt of the termination: Immediately upon receipt of a termination, you should carefully document the document of receipt and the date of receipt.
2. Observe deadlines: Calculate the three-week period precisely from the day following the date of receipt of the termination. This period is crucial for your options for action.
3. Legal advice: Contact a lawyer specialising in employment law immediately upon receipt of the termination. Expert legal advice is essential at this stage to protect your rights and ensure that you do not miss any deadlines.
4. Filing a lawsuit: Your lawyer will advise you on whether and how to file an action for unfair dismissal with the competent labour court. Please note that the deadline for filing a lawsuit must be strictly adhered to.
5. In case of difficulties: Inform your legal advisor immediately. They can assist you in meeting the deadline.
6. Secure documents: Collect and secure all relevant documents, such as the termination letter, correspondence and witness statements that could support your claims.
7. Check your legal expenses insurance: Check whether you have legal expenses insurance that covers the costs of an action for unfair dismissal.

Compliance with the deadline for an unfair dismissal claim is crucial to the success of such an action. Do not take the risk of missing this deadline. Seek legal assistance at an early stage to examine and enforce your legal options. This is the only way to effectively protect your rights and defend yourself against unlawful dismissal.

Frequently asked questions (FAQ)