Dismissing employees ‘just like that’ is (usually) not possible in Germany! The Dismissal Protection Act (KSchG) forms the backbone of job protection in Germany. It protects employees from arbitrary and unfair dismissals and safeguards their professional livelihood. But what exactly does the KSchG regulate and how can employees derive their rights from it? In this article, you will learn everything you need to know about the Employment Protection Act and how it can help you guarantee your job security.
Inhalte
When is the Employment Protection Act applicable?
Of course, employee protection under the Dismissal Protection Act only applies if the law is applicable at all This is because the KSchG does not apply to all employment relationships in Germany Only if the employment relationship has existed for at least six months without interruption and is not a ‘small business’ does the KSchG apply to an employment relationship Since 1 January 2004, the Dismissal Protection Act only applies to companies that regularly employ more than 10 employees
Part-time employees are only counted in proportion to their weekly working hours For example, part-time employees with a weekly working time of up to 20 hours are taken into account with a factor of 0.5 and employees with up to 30 hours with a factor of 0.75 There are also exceptions for executive employees, probationary employment relationships and fixed-term employment relationships where the KSchG does not apply
Calculate severance pay now free of charge
- Calculate potential severance payment amount
- Strategy for negotiating a fair severance payment
- Find suitable lawyers for labour law
When can the employer give notice?
The Employment Protection Act provides for three types of dismissal: dismissal for personal reasons, dismissal for behavioural reasons and dismissal for operational reasons.
1. dismissal for personal reasons
If the employee is no longer able to perform their agreed work on a permanent basis for personal, uncontrollable reasons, this constitutes a dismissal for personal reasons, including in particular illness. According to the KSchG, such a dismissal can only be socially justified, i.e. legally effective, if the following conditions are met:
- Negative prognosis: The disruption must also be expected in the future.
- Impairment of economic interests: The continued employment of the employee significantly impairs operational interests.
- Ultima ratio principle: The employer must first consider milder measures, such as a transfer or change in working hours, before being allowed to dismiss.
- Balancing of interests: It must be weighed up whether it is reasonable for the employer to continue the employment relationship.
2. dismissal for behavioural reasons
Another form of dismissal is behavioural dismissal. This is due to the employee’s reproachable, i.e. controllable, behaviour, for example refusal to perform work or theft. A negative prognosis is also required for the legality of such a dismissal. In addition, the ultima ratio principle also applies, which is reflected in the requirement for a warning in the case of behavioural dismissal. Furthermore, the interests of both the employee and the employer must be weighed up.
3. dismissal for operational reasons
In practice, dismissals for operational reasons are usually based on a business decision. This usually occurs as a result of site closures or economic hardship. Here too, the ultima ratio principle applies, i.e. the priority of milder means. As a special feature, social selection must also be carried out by comparing employees with one another on the basis of various criteria such as length of service, age, maintenance obligations and severe disability. This means that people who fulfil the above criteria cannot be dismissed as easily as others.
Special case: dismissal with notice of change
Notices of termination with the right to change employment conditions enable employers to adjust contractual conditions. In this case, the employee is dismissed in compliance with the notice period and at the same time offered a new employment contract with amended conditions. As an employee, you have three options with regard to an offer of change: you can accept the offer, accept it subject to a judicial review or reject it. It is advantageous to accept the notice of termination with reservation. In this way, you secure your job and at the same time reserve your right to take legal action against the dismissal. The three-week deadline must also be observed here, as this is usually the only time that an action for protection against dismissal can be filed.
Calculate your severance payment
Calculate the settlement amount for your individual case in 2 minutes
When must the works council be consulted?
If a works council exists, it must be consulted. Without this consultation, a dismissal is invalid. The works council examines the reasons for the dismissal and can express concerns, but does not have the right to prevent the dismissal.
What is the difference between general and special protection against dismissal?
The Protection against Dismissal Act is referred to as general protection against dismissal. There is also special protection against dismissal, which offers additional protection against dismissal for certain groups of people. These include pregnant women, members of the works council, trainees and the severely disabled.
What needs to be considered?
In order to assert a claim for protection against dismissal, the deadline must be observed. Otherwise, a legally invalid dismissal will be treated as legally valid from the outset. This can result in the employee no longer having the opportunity to take action against the dismissal and claim possible entitlements. The deadline is three weeks from receipt of the written notice of dismissal. For example, if an employee receives a notice of termination on 9 May 2023, the period begins on 10 May 2023 and ends on 30 May 2023. It is also essential to observe the deadline for any severance pay negotiations, as the employer will generally no longer pay any severance pay once the three-week period has elapsed.
Conclusion: What advantages does the Employment Protection Act offer employees?
The Protection against Dismissal Act (KSchG) grants employees a number of advantages, including in particular protection against unjustified dismissal. In addition, the employee is entitled to continued employment if a dismissal is not socially justified and is therefore invalid. The provisions of the KSchG therefore protect employees from existential risks, increase job security and promote social justice. Employees can defend themselves against unjustified dismissals at the competent labour court with the help of an action for protection against dismissal, which is the most important instrument of the KSchG. If the invalidity of a dismissal has been established and the continuation of the employment relationship is unreasonable for both parties, the court can in some cases order a severance payment.
Free initial consultation with a specialist lawyer
- Free initial consultation with a lawyer
- Quick callback after 1 to 2 hours
- Strategy for negotiating the severance pay
