Your Rights in Case of Dismissal During Short-Time Work

A dismissal during short-time work (Kurzarbeit) is generally possible. Many employees assume the opposite, but that is only partly true. Personal and conduct-related dismissals may occur at any time. Operational dismissals can also remain possible unless collective agreements or works council agreements exclude them. However, stricter requirements apply. This article explains when a dismissal during short-time work is lawful.

Operational dismissals during short-time work

The belief that employees cannot be dismissed during short-time work (Kurzarbeit) persists, especially online. Unfortunately, that is incorrect. Employers may dismiss employees even while short-time work is in place.

Personal and conduct-related dismissals remain possible at all times if dismissal protection laws are respected. Operational dismissals are also possible in principle – but additional requirements must be met, as explained below.

Dismissal bans: collective agreements or works council agreements

In practice, it is common for collective agreements or works council agreements to prohibit all operational dismissals during short-time work, or even for a certain period afterward. Employees should ask their works council or trade union representatives whether such a rule exists. If it does, an operational dismissal is invalid for this reason alone.

Additional requirements under the Dismissal Protection Act (KSchG)

If no dismissal bans exist in collective agreements or works council agreements, the general rules for operational dismissals apply. However, if the operational reasons are connected to short-time work, employers face additional hurdles:

• Short-time work can only be introduced in cases of temporary work shortages.
• Operational dismissals are only valid in cases of permanent work shortages.

This contradiction makes operational dismissals during short-time work (Kündigung während Kurzarbeit) particularly difficult. For example:

• Employers must prove that certain operational needs led to a permanent loss of the position. But short-time work itself suggests only a temporary reduction in work demand.
• Employers must therefore present additional facts, such as new developments during short-time work (e.g., further loss of orders, closure of additional departments), which made the position permanently redundant. Or they must show that short-time work was insufficient to secure jobs in the long term.

In short: The employer must prove that there are reasons beyond the initial short-time work that permanently eliminate the job. If they rely only on the same reasons that justified short-time work, the dismissal is invalid.

Burden of proof lies with the employer

Employers always carry the burden of proof for the dismissal reasons they claim. For an operational dismissal during short-time work, this burden increases: they must prove new circumstances that turned a temporary work shortage into a permanent elimination of the position.

First steps after receiving a dismissal during short-time work

If you receive a dismissal during short-time work (Kündigung während Kurzarbeit), quick action is essential:

• Employees have three weeks to decide whether to file an unfair dismissal claim (Kündigungsschutzklage) with the labor court.
• The key steps after receiving a dismissal are explained in our article “Termination of Employment: 7 Steps You Should Take After Being Dismissed.”
• Any severance offer from the employer should be carefully reviewed. Employees should consult an employment lawyer. AbfindungsHero helps you connect with experienced employment law specialists near you. Our free severance calculator also provides an initial estimate of your potential entitlements.

Frequently asked questions (FAQ)