Every year, there are 200.000 lawsuits against unfair dismissal in Germany (BMAS). When an employer dismisses employees, many will receive a severance payment. Even though technically, there is not always a legal right to such a payment. In practice, however, in the event of termination by the employer, severance payments will be paid most of the time. The amount of severance pay depends on many factors – including your negotiation skills. Three factors are typically most relevant to calculate the “fair” amount of severance pay in Germany. The length of service, the last salary, and the “multiple”. This “multiple” is a factor between 0.5 and 1.5, depending on the circumstances of your individual case. Especially if a dismissal is “unfair”, the “multiple” will be higher.
What is a “fair” severance pay in Germany anyway?
Obviously, that depends! First, we need to state clearly that there is no statutory severance pay in Germany. It is a widespread misconception that there is a general statutory severance pay in Germany. That is not the case, at least not in general. Even though Germany tends to be among the more employee-friendly countries, especially regarding ending employment contracts. But only in the rare cases of a “social plan” with the works council (often agreed on in the case of mass layoffs) or under a collective bargaining agreement), do employees have the legal right to a certain severance payment.
In practice, however, employers and employees will often agree on severance payments in the event of termination by the employer. The amount of severance payment in theses cases depends greatly on the individual circumstances. For example age, length of service of the employee, as well as special protection against dismissal. Such “non-cancellation” reasons apply e.g. for works councils, severely disabled people, pregnant employees, or employees on parental leave. In the absence of any such “special circumstances”, there are a few “rules of thumb” to estimate the “fair” amount of severance pay:
Different rules of thumb apply
There are a few “rules of thumb” to estimate the “fair” amount of severance pay:
A widespread calculation determines the “standard severance payment” using half a month’s salary per year of employment as a basis. For example, an employee who has worked for 10 years at his last employer and last earned a gross (pre-tax) income of EUR 3,000 per month would receive a severance payment of EUR 15,000 (0.5 * EUR 3,000 * 10 years). The three decisive variables are the factor of 0.5, the amount of the last monthly salary paid (gross), and the length of service.
A different calculation and “rule of thumb” differentiates further by age. The multiple of 0.5 increases to 0.75 or 1.0, according to the age of the employee. In the example above, a 52-year-old employee would then receive a severance payment of €30,000 (i.e. 1.0 * €3,000 * 10 years).
In practice, the multiple not only depends on the individual circumstances of the employee but also on numerous other influencing factors. Depending on the labor court district and the size of the employer’s company, some courts will apply a factor of 1.0 (not 0.5) to most cases, even regardless of age. And depending on the circumstances of the individual case, the factor can also be 1.2 or higher in some cases. For example, when the dismissal was obviously void and illegal. A specialized labor lawyer will know all the details.
How to calculate the “fair” amount of severance pay in detail?
As already described above, the three factors of salary, length of service, and “multiple” determine the amount of the severance payment:
Last gross (pre-tax) salary
The last gross (pre-tax) salary at the time of termination is particularly important for the calculation of a severance payment. It depends on the monthly gross salary at the time of termination. In the case of one-off payments, overtime, and other supplements, “annual income / 12 ” is standard practice to calculate the monthly gross wage
Duration of service
The existence of the employment relationship is decisive for the calculation of the length of service. Maternity leave, part-time work and training periods are part of the service period. Other periods, for example, when an employee was only working as a temp/freelancer, are not taken into account. If you have taken a sabbatical, it depends on the agreements between employer and employee.
The “multiple” (e.g. 0.5 according to the rule of thumb, see above) depends not only on age but also on the effectiveness of the termination and the strength of any protection against dismissal:
- Effectiveness of the termination: Of course, the question of the effectiveness of the termination is highly relevant for the value of the multiple. If the termination is obviously void, an employee will typically only agree to a (consensual) termination in court, if the employer offers a significantly higher severance payment. But even if the termination is effective and there is actually no entitlement to severance pay, many employers will offer some severance pay “voluntarily”. However, these are usually lower and are based on the rule of thumb presented above (with a factor of 0.5).
- Strength of the protection against dismissal: Even in the case of an ineffective dismissal, the strength of the protection against dismissal is important when negotiating an annulment. Among other things, legal hurdles such as special protection against dismissal (“non-cancellation”) for certain groups of employees have an increasing effect here. It also depends on whether the “formal” requirements for termination (e.g. the correct works council hearing) are met before the notice of termination is given.
What other payments may be relevant?
There are other payments that are technically irrelevant for the calculation of the amount of “core” severance pay in in Germany. However, they can still significantly improve the employee’s financial situation. These include:
- Lost salary payments for the time of the job search. As a rule, there is a considerable drop in salary when you are looking for a job, despite unemployment benefits. However, these can often be “replaced” by the old employer. For example, an employee ma file an action for protection against unfair dismissal. The court comes to the conclusion that the dismissal was invalid about six months after the termination date. Then the employer must pay the wages for that period. Even though the employee did not work as a result of the invalid dismissal. Legally speaking, the employer was in “default of acceptance” and must therefore pay the employee who was dismissed. That means essentially “no work, but money anyway”. In addition, a short dismissal protection procedure can affect the amount of the actual severance payment
- Bonuses, commissions, other variable or one-off payments. Employees often forget the existence of bonuses, commissions and other one-off payments that have not yet been paid out. Of course, these should always be claimed on top of the actual severance pay. And not “settled” by the severance pay.
- Other wages: Such as unpaid overtime, pro rata vacation pay and Christmas bonus as well as other “open” wage payments. They should also be claimed in addition to the actual severance pay.
Notice received: Now what?
If you have received a written notice of termination in Germany, it is first important that you act quickly. You may have to file an action for protection against unfair dismissal with the labor court within three weeks. You should carefully examine any offer from your employer and seek advice from an employment lawyer. Your lawyer can also best compare the amount of the offer with the “fair” severance pay;: