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.

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 it.

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 an employee misses the three-week deadline for filing an unfair dismissal claim, German law allows an “application for subsequent admission” under Section 5 KSchG. This is only possible if the employee was prevented from filing the claim on time despite exercising all due care expected under the circumstances. There must be no fault on the employee’s part. This remedy is an exception. The requirements are strict, and courts reject such applications in many cases.

Examples:

• A late filing of an unfair dismissal claim may still be admissible under Section 5 (1) KSchG if an employee only becomes aware of a pregnancy after the three-week deadline due to circumstances beyond their control.
• Illness alone is not sufficient to justify a late claim. It is only relevant if the employee was personally unable to act and could not reasonably use third parties (e.g. spouse, relatives, friends) to file the claim. This always depends on the severity of the illness and individual circumstances.
• A hospital or rehabilitation stay does not automatically justify late admission if the employee could have acted through third parties.
• During detoxification treatment, it depends on whether external contact was prohibited or unreasonably restricted.
• Holiday absence is generally not sufficient for late filing. If the termination is received abroad, the employee must take reasonable steps (e.g. electronic communication) to act in time. If delivered to the home address, late admission is only possible if the employee was not at fault, for example when failing to arrange mail monitoring during a longer absence (e.g. six weeks).

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)

1. There are only a few exceptions, for example for temporary employees who are not employed for more than three months. ↩︎