Both the employer and the employee can terminate an employment relationship for an indefinite period of time by giving ordinary notice. This period is either defined directly in the employment contract or is based on the statutory provisions. If the employer gives ordinary notice of termination, this is known as an employer’s notice of termination. If, on the other hand, the employee initiates the ordinary termination, this is referred to as employee termination. Employees are entitled to resign without giving reasons. The employer, on the other hand, is obliged to provide valid and specific reasons for the dismissal.
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Ordinary termination by the employer
In contrast to employees, employers are subject to significantly more extensive provisions when giving notice of termination. An effective ordinary dismissal by the employer must not only be accompanied by a clearly defined reason for dismissal, but must also comply with specified notice periods, take into account the reasonableness and fulfil specific formal criteria. In addition, the special protection against dismissal of certain employee groups must be observed. In view of the complexity of the regulations, it is advisable to seek advice from an experienced labour law specialist in order to ensure that a dismissal is legally compliant. They will ensure compliance with all legal provisions and offer professional support.
The special protection against dismissal
There are certain groups of employees for whom the Protection against Dismissal Act offers extended protection against dismissal. If an employee is subject to this protection, dismissal is either more difficult to enforce or may not be permitted at all. The groups that enjoy such extended protection against dismissal include:
To continue the list and explain which groups enjoy special protection against dismissal:
- Pregnant employees: According to the Maternity Protection Act, pregnant employees may not be dismissed during pregnancy and up to four months after giving birth. Exceptions exist if the competent authority authorises the dismissal by way of exception.
- Works council members and similar company representatives: They enjoy increased protection against dismissal during their term of office and for one year thereafter in order to be able to carry out their duties independently and without fear of disadvantage.
- Severely disabled people: Severely disabled employees enjoy special protection against dismissal in accordance with the German Social Security Code. Severely disabled persons can only be dismissed with the prior consent of the Integration Office.
- Trainees: Trainees cannot be summarily dismissed after the end of their probationary period. This requires a valid reason and the provisions of the Vocational Training Act must be complied with.
- Employees on parental leave: In principle, employees on parental leave cannot be dismissed. Exceptions to this rule require official authorisation.
These protective regulations are intended to protect the aforementioned groups of employees from unjustified dismissal and to offer them a certain degree of security in their employment relationship. In order to act correctly and in accordance with the law as an employer, you should act with caution when dismissing employees who fall under such special regulations and seek detailed legal advice in advance.
Even if an employee does not enjoy extended protection against dismissal, it is essential that employers carefully weigh up the appropriateness of a dismissal. This requires proof that there are no less drastic alternatives to dismissing the employee. The employer is obliged to have exhausted all possibilities in advance to prevent the dismissal, including discussing other available or adequate positions within the company. For example, if a professional driver loses their driving licence, they should be offered another suitable job within the company if one is available. However, there is no obligation for the employer to create new positions specifically for this purpose.
It is also necessary to check whether the employee’s work behaviour has such a serious impact on the company’s interests that a continuation of the employment relationship cannot be justified. Relevant reasons may include, for example, significant performance deficits or repeated absences that have a noticeable impact on turnover and operational processes. If, on this basis, a negative future prognosis is drawn up which suggests that the employee will not fulfil the requirements of the employment contract in the future either, this can be used to justify a dismissal.
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Compliance with the notice periods for ordinary termination
Certain notice periods must be observed for a termination to be effective. In general, the statutory notice period of four weeks to the fifteenth or last day of a month applies. However, if the employee has been with the company for more than two years, the notice period is extended in accordance with Section 622 of the German Civil Code (BGB). The notice period increases with each additional period of employment of the employee, whereby notice of termination must always be given at the end of a calendar month.
The statutory notice periods are as follows:
|Duration of employment
|Period of notice
|From 2 years
|From 5 years
|From 8 years
|From 10 years
|From 12 years
|From 15 years
|From 20 years
Formal requirements for an ordinary dismissal
The correct procedure for a dismissal includes informing the works council in accordance with Section 102 of the Works Constitution Act (BetrVG). The works council must be informed and consulted about the details of the dismissal. However, the handling or reaction of the works council to this consultation is not important for the legal validity of the dismissal. All that matters is that the works council is properly and fully informed. It is then necessary to send the notice of termination to the employee.
The letter of dismissal must comply with certain regulations:
- According to Section 623 of the German Civil Code (BGB), written form is mandatory for termination; any other form of termination, such as verbal, via social networks, email, SMS or WhatsApp, is invalid.
- The identity and address of the contracting parties should be clearly stated so that it is clear who the termination is between.
- A date on the letter serves to comply with the deadlines, but is not mandatory for validity.
- An original handwritten signature of the terminating employer is required on the letter.
- The termination document should include a reference to the obligation to look for work, which must be done within three days. This will help you avoid sanctions such as a reduction or suspension of unemployment benefit. A missing notice does not invalidate the termination. However, it could result in claims for damages if the employee was not made aware of this.
- It is advisable to have a witness present when the letter of dismissal is handed over. A registered letter or registered letter with acknowledgement of receipt can be used to prove receipt.
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Ordinary termination by the employee
Proper dismissal by the employee requires compliance with certain formalities:
The notice period: To be legally valid, notice of termination must be given by the employee within a period of four weeks, either on the 15th of the month or at the end of the month. For example, if you wish to give notice with effect from 31 October, you must submit your notice by 2 October at the latest.
Written form requirement: According to Section 623 of the German Civil Code (BGB), notice of termination must be submitted in writing and signed by the employee. A verbal termination is not legally valid. To ensure proof of receipt, the notice of termination should ideally be sent by post or handed directly to the relevant department.
Reason for dismissal: Although employees do not have to give a reason for ordinary dismissal, it can be useful to explain the background, e.g. to obtain a favourable reference.
Termination without notice: In extreme cases, such as long-term non-payment of salary, breaches of health and safety rules (such as permanently blocked escape routes or persistently exceeding working hours) or personal injury (such as insults or bullying), the employee is permitted to resign without notice.
Avoiding the blocking period: In the event of resignation, the employee should, if possible, have a new job offer in hand in order to avoid the 12-week blocking period for unemployment benefit. If there are good reasons that characterise the employment relationship as unreasonable, this blocking period is usually waived.
Is ordinary dismissal without cause possible?
As soon as an employment relationship has existed for more than six months and the company employs at least 10 full-time employees, valid reasons are required for an ordinary dismissal to be effective, as the Dismissal Protection Act (KSchG) applies. This law is intended to restrict premature dismissals and only permits the termination of an employment relationship for operational, personal or behavioural reasons.
- Dismissal for operational reasons: If a company realigns itself, externalises certain tasks or temporarily shuts down production, this can justify ordinary dismissal for operational reasons.
- Dismissal for personal reasons: Termination for personal reasons may be considered if the employee is unable to fulfil their contractual obligations, such as temporary employment bans or declining performance due to addiction problems. No prior warning is required for this.
- Dismissals due to illness fall into the category of dismissals for personal reasons and are among the most common cases. In the event of repeated cases of illness or long-term illness, the employer can even terminate the contract during sick leave.
- Dismissal for behavioural reasons: Dismissal for behavioural reasons is appropriate if the employee breaches their work obligations. This is the case, for example, in the event of continuous unexcused absences, alcohol consumption during working hours, bullying or physical altercations. If there is no change in behaviour after a warning, the employee may be dismissed for this behaviour.
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Conclusion and what to do?
If you do not agree with your dismissal, it is advisable to consult an adviser specialising in labour law immediately. As a trade union member, you are generally entitled to legal assistance and can consult a secretary of your trade union. If you are not a union member, it is advisable to contact a specialist lawyer for labour law. They will also check whether your legal expenses insurance covers labour law disputes and pays the costs.
It is important that you act promptly. This is because you must decide within three weeks of receiving the dismissal notice whether you wish to file an action for unfair dismissal.
Successful dismissal protection action
If the action for protection against dismissal is successful and the labour court declares the dismissal to be unlawful, your employment relationship will be deemed to have continued without interruption. You may then be entitled to receive your full salary for the period between the end of the notice period and the court judgement, even if you were not working during this time.
Settlement even without court proceedings
Even if you don’t actually want to go to court, a visit to a lawyer can be beneficial. They can try to reach an amicable agreement with your employer. Employers are also often interested in avoiding going to the labour court.
Registering with the employment agency
It is also important that you register as a jobseeker within three days of receiving your notice of termination (in accordance with § 38 SGB III) in order to maintain your full entitlement to unemployment benefit. Otherwise you could be subject to a suspension period.
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