The statutory notice period defines the framework within which the employer and employee can terminate the employment relationship of their own accord. For a notice of termination to be legally effective, it must be in writing. There are two main types of notice of termination:
1.) Ordinary notice of termination, which is given in compliance with the statutory notice periods.
2) Extraordinary termination, which usually takes effect without a notice period. This is legitimate if there are valid reasons that would make it unacceptable for the terminating party to continue the employment relationship until the end of the statutory notice period.
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What deadlines apply to ordinary termination?
If a party decides to terminate the employment relationship with notice, certain deadlines must be observed. These deadlines can originate from different sources:
- the individual employment contract,
- a possible collective labour agreement or a works agreement,
- or directly from statutory regulations.
It is important to first check whether a collective agreement applies to the employment relationship to be terminated, as its provisions regarding notice periods take precedence. A collective agreement can both extend and shorten the notice periods. However, if the employment contract stipulates a longer notice period for the employee, this will be applied in accordance with the principle of favourability. Employers can obtain information on collective agreements and their notice periods from the relevant employers’ associations.
Statutory notice period of the employee in the event of ordinary termination
An employee may terminate his or her employment relationship in due time by giving four weeks’ notice either to the middle or end of the month, subject to the statutory notice period.
Deviations from this generally binding rule are possible through individual contractual agreements. However, a shorter notice period may only be stipulated if the employee has been hired for a temporary position that lasts no longer than three months.
Furthermore, in smaller companies, usually with a workforce of no more than 20 employees excluding trainees, it is permitted to deviate from the standard notice period of the fifteenth or last day of the month by means of separate contractual agreements. However, the duration of the four-week notice period may not be shortened.
It should also be noted that an individual contract may not stipulate a longer notice period for the employee than for the employer.
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Employer’s statutory notice period for ordinary termination
Extended statutory notice periods are provided for the employer in certain cases, as the employee is usually categorised as more vulnerable. It is assumed that dismissal is often a heavier burden for the financially weaker and dependent employee than for the employer.
The statutory notice period given by the employer generally depends on the length of service of the employee concerned. For example, if the employment relationship has lasted five years, the employer’s statutory notice period is two months to the end of the month. If the employee has been employed for eight years or more, this period is extended to three months. The exact notice periods can be found in Section 622 BGB.
Contrary to the previous interpretation of Section 622 (2) BGB, periods of employment prior to the employee’s 25th birthday must also be included when calculating the notice period. This practice was controversially discussed for a long time until the European Court of Justice ruled on 19 January 2010 that not taking into account periods of employment before the age of 25 is to be regarded as age discrimination and therefore a violation of EU law. This means that periods of employment before the age of 25 must also be included in the calculation of notice periods.
Furthermore, it is possible to reach a contractual agreement that
Deviating regulations from the statutory notice period for employment contracts
If an effective collective agreement exists and it stipulates notice periods that deviate from the aforementioned statutory provisions, it has priority and is authoritative. In certain cases, this may also result in shorter notice periods than those stipulated by law.
During the probationary period, which may last a maximum of six months, it is possible to terminate the employment relationship with a notice period of two weeks.
When can an employment relationship be terminated for cause?
If there is a significant and serious reason that makes it unreasonable for the employer or employee concerned to continue the employment relationship, termination without notice is possible. There is therefore no need to wait for the usual ordinary notice periods.
However, it should be noted that notice of termination must be given within two weeks of becoming aware of the serious reason. Delaying the notice of termination beyond this period implies that the reason may not be serious enough for the continuation of the employment relationship until the end of the ordinary notice period to be considered unreasonable. In such a case, the legitimacy of the termination without notice could be questioned.
