Termination without notice, also known as extraordinary dismissal, is a situation in which the employment relationship is terminated without observing the usual notice periods. This has significant consequences for the employee, as it leads to a sudden loss of income, a suspension of unemployment benefits and can have a negative impact on future job applications. For such a termination to be effective, certain conditions must be met, such as the existence of good cause that makes continued employment unreasonable.
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What conditions apply to termination without notice?
The German Civil Code (§ 626 BGB) stipulates strict conditions that must be met for a termination without notice to be effective:
- Necessity of an important reason for termination: A serious problem or a serious incident is required. This reason must make it unreasonable for the employer to expect the employee to continue working for them.
- Two-week period: Once the employer has become aware of the reason for termination without notice, they only have two weeks to give notice. The employee must receive the notice of termination within this period. If more time passes, the dismissal is invalid. The law then assumes that the continuation of the employment relationship is not unreasonable. It is important to note that the employer must prove that they were not aware of the reason for termination for more than two weeks.
- Formalities: According to the law (§ 623 BGB), notice of termination must be given in writing. This means that the letter of termination must be signed by the person issuing it. Verbal termination or termination by email, WhatsApp or fax is invalid. In the case of larger companies, employees should always check whether the person giving notice has been authorised by the employer to give notice. If there is any doubt, the employee can request a power of attorney. If this is not presented, the employee can reject the dismissal for this reason. However, it can be assumed that the employee is authorised to give notice if it is a person known to the employee who is authorised to give notice (e.g. HR manager).
- Prohibition of dismissal: There are certain groups of persons who enjoy special protection against dismissal. The special protection against dismissal includes: Pregnant women, persons on parental leave, severely disabled persons and works council members.
- Involvement of the works council: If there is a works council in the company, the employer must consult it before any dismissal. If the employer fails to do so, the dismissal is invalid.
What reasons justify termination without notice by the employer?
In order for an employer to dismiss an employee without notice, there must always be serious reasons that justify such a measure. Depending on the specific reason for dismissal, dismissals can be divided into three categories:
- Termination due to misconduct: This type of dismissal is triggered by breaches of duties or serious misconduct. Termination due to misconduct: This type of dismissal is triggered by breaches of duties or serious misconduct. Examples include theft, fraud, embezzlement, crime, sexual harassment, bullying, refusal to work. However, minor offences such as taking unauthorised leave, feigning illness or breaches of working time regulations can justify immediate dismissal.
- Dismissal on personal grounds: This is where the employee is no longer able to carry out their job at work. For example as a result of long-term illness, a prison sentence or the loss of a driving licence required for the job, as in the case of professional drivers.
- Dismissal for operational reasons: In this case, the reason for dismissal lies with the employer. For example, jobs may be lost due to operational reorganisation, the relocation of production facilities or insolvency. However, unannounced dismissal for operational reasons is only possible in rare exceptional situations.
Blocking period at the job centre due to termination without notice?
If the employer dismisses the employee without notice due to their behaviour (dismissal for conduct-related reasons), this can result in the employee not being paid unemployment benefit for up to three months. In the case of a termination without notice due to behavioural reasons, the legislator assumes that the employee is responsible for the termination. The blocking period is not triggered by dismissals for personal or operational reasons. In these cases the employee is not responsible for being dismissed without notice.
A suspension period means that you are temporarily not granted unemployment benefit. As the blocked period is counted towards the total period of benefit receipt, you will receive less unemployment benefit in total than you would actually be entitled to. Let’s assume that you are entitled to twelve months of unemployment benefit, but that you are blocked for twelve weeks. In this case, you would only receive the corresponding social benefit for nine months.
If you file an action against unfair dismissal in the event of a dismissal without notice and win, the blocking period will be prevented!
Is severance pay possible in the event of termination without notice?
A severance payment is a one-off payment that the employee receives upon termination of employment. There is no general legal entitlement to such a payment. It therefore depends on whether you and your employer agree on a severance payment. Whether and how you can persuade the employer to make a payment varies from case to case. As an employee, you have the advantage that terminations without notice are extremely error-prone. In this case, you must specifically look for mistakes made by the employer in order to put pressure on them. Starting points are, for example:
- Doubts about the important reason for termination
- Failure to issue a warning, although this would have been necessary
- the termination suffers from formal errors
If the employer does not agree to negotiate a severance payment, you can still go to court and file an action for unfair dismissal. There is often still a good chance of receiving a severance payment.
