Special protection against dismissal: What needs to be considered?

The special protection against dismissal serves to provide special protection for specific, vulnerable groups of employees. Dismissals against these persons are usually only permitted with good cause and the approval of an authority – similar to the strict requirements for dismissal without notice. This protection goes beyond the general protection against dismissal and severely restricts the employer’s options for dismissal, even in the event of dismissal for operational, behavioural or illness-related reasons.

To whom does special protection against dismissal apply?

In Germany, various groups of employees enjoy special protection against termination, which protects them from arbitrary or unjustified dismissal. These groups of people who fall under this increased protection include

• Pregnant women and employees on maternity leave: their protection against dismissal begins with the pregnancy and continues during the maternity leave period. Dismissal may only be permitted in rare, strictly regulated exceptional cases and with the authorisation of the competent authority.
• People with severe disabilities: For this group of people, dismissal is only possible with the prior consent of the integration office.
• Members of the works council and other employee representatives: They enjoy special protection in order to be able to carry out their duties free from pressure from the employer. Dismissals are only possible in exceptional cases and under strict conditions.
• Employees on parental leave: Dismissal is generally not permitted during parental leave, except in special cases and with the approval of the competent authority.
• Employees on care leave: Similar to employees on parental leave, these employees are also protected from dismissal during their care leave.
• Trainees after the probationary period: After the end of the probationary period, the training contract can only be terminated for good cause.
• Military service and voluntary service: They are protected from dismissal during their service as well as during a subsequent protection period.

This special protection from dismissal is intended to ensure that employees do not lose their jobs due to events that represent a special life circumstance or that have a social protective function. Employers must therefore take particular care when dismissing these groups of people and adhere to the legal requirements.

Difference between general and special protection against dismissal

The main difference between special and general protection against dismissal in Germany lies in their scope of application and the respective protection objectives.

General protection against dismissal: This protection applies universally and is enshrined in the Dismissal Protection Act (KSchG). It applies to employment relationships in companies with more than 10 employees and applies to employees who have worked for a company for more than six months. The general protection against dismissal aims to protect employees from socially unjustified dismissals. Accordingly, a dismissal is only justified if it is either behavioural, personal or operational and is implemented in accordance with the statutory provisions.

Special protection against dismissal: In contrast, special protection from dismissal is aimed at special groups of employees to whom the legislator grants extended protection due to their potential vulnerability. These include pregnant women, severely disabled persons, works council members, employees on parental or caring leave and trainees after their probationary period. Special regulations apply to these groups of people, which only permit dismissal in exceptional cases and under strict conditions.

The special protection against dismissal therefore exists in addition to the general protection against dismissal and is intended to protect the aforementioned vulnerable groups from the consequences of dismissal. It is applicable regardless of the size of the company and the length of service.

In summary, it should be emphasised that the general protection against dismissal serves to safeguard the employment relationship in general, while the special protection against termination offers additional security for certain groups of employees who are particularly in need of protection.

Severance pay usually higher

Because the hurdles for dismissal on the part of the employer are higher for persons with special protection against dismissal than for employees who are only covered by general protection against dismissal, it can happen that these employees receive an above-average severance payment in the event of a lawful dismissal or the conclusion of a termination agreement. This practice recognises the increased need for protection and reflects the potentially greater challenges that severely disabled or otherwise specially protected persons may face when looking for a job.

Exceptions to special protection against dismissal

Despite the special protection against dismissal, there are exceptions where this protection does not apply:

1. If the severely disabled person or person with equivalent status resigns themselves.
2. In the case of a cancellation agreement concluded by mutual agreement between the employer and employee.
3. At the end of a fixed-term employment contract, provided that the employee is not transferred to a permanent employment contract.
4. If the employment relationship has been in place for less than six months at the time of termination.
5. If an application for recognition as a severely disabled person has been submitted but could not be processed due to a lack of co-operation on the part of the applicant.
6. If the application for recognition of severe disability or equalisation is rejected, even if an objection or complaint is lodged.
7. For persons over 58 years of age, if they are offered a severance payment instead, for example.
8. In the case of weather-related dismissals, on condition that re-employment is guaranteed.
9. If there is no proof of severe disability at the time of dismissal.

These exceptional situations enable the employer to offer the employee a severely disabled person a severely disabled position, even in the case of a special case.

Summary

• Special protection against dismissal exists for defined groups of employees, such as pregnant women, parents and people with a severe disability.
• Dismissals to these groups are generally only possible in exceptional circumstances.
• The consent of the Integration Office must be obtained for the dismissal of severely disabled employees.
• The consent of the works council is required before parents or pregnant women can be dismissed.
• Employees who have been with the company for a long time enjoy extended protection against dismissal.
• After receiving notice of dismissal, an action for unfair dismissal must be filed within three weeks.
• If a dismissal is invalid, claims for damages can be asserted.
• Under certain circumstances, the special protection against dismissal also applies beyond the end of the employment relationship.