Handbook German Employment Law
Specialist for Employment Law Dr. Eric Uftring contributed a detailed chapter on staff leasing agreements. Order here.
Dismissal, Termination and Protection against Unfair Dismissal in Germany
Whether the employee or the employer terminates an employer-employee agreement, important deadlines and regulations must be complied with, so that the termination becomes effective. Our specialized German employment attorneys advise on the correct termination of employment relationships in Germany.
Which deadlines must be met?
In case of a dismissal, the required notice periods must be complied with. Usually, the notice period is explicitly regulated in the employment contract. If this is not the case, the notice period is four weeks before the 15th or the end of a calendar month. This legal notice period increases with an employee's period of service in the company.
During the probationary period of a maximum of six months, a two-week notice period must be observed. The agreement may be terminated until the last day of the probationary period. In this case, the employment relationship ends two weeks after the probationary period expired.
Share of works council in the decision
If the terminating company has a works council, it must be consulted before the notice of dismissal is announced. If the employer fails to inform the works council of an employee's dismissal, the dismissal is invalid and can be annulled by a labour court. The termination is also ineffective when the consultation of the works council is incomplete and does not reveal all the details known to the employer.
Compliance with formalities
Any dismissal must be in written form and signed by the authorized person. Neither the employer nor the employee may deliver a dismissal by fax or e-mail. Also a "delivery" via Whatsapp or social media does not meet the legal requirements.
Moreover, the letter of dismissal must be delivered in a legally effective manner. Ideally, a dismissal is delivered personally and acknowledged by the recipient.
Observing the regulations on protection against unfair dismissal
Employees in Germany enjoy protection against dismissal according to the German Employment Protection Act (KSchG). Prior to a dismissal, the employer must therefore give intensive thought to whether a termination of the respective employee is possible at all. By the way, simply bad performance is not a legal reason for dismissal.
During the first six months of an employment, however, there is no protection against dismissal according to the KSchG – apart from certain legal exceptions. Moreover, the German Employment Protection Act does not apply if the employee's business is a "small enterprise" (usually ten or less employees except trainees; five or less employees if the employment started before 12 December 2003).
Legal action for protection against unfair dismissal
You can proceed against a dismissal with a so-called claim against unfair dismissal. However, a three-week period must be observed.
This means that the claim against unfair dismissal must be filed within three weeks as of the date of termination. The three-week period for filing an action applies to ordinary dismissals, dismissals with the option of reemployment on altered conditions as well as extraordinary dismissals if the employee asserts the lack of a good cause. The three-week period does not only apply if the employee claims that the dismissal is socially unjustified, but also if the dismissal is legally invalid for other reasons (Sections 4 sentence 1 German Employment Protection Act).
A claim against unfair dismissal may also be filed against an extraordinary termination if the terminating company is a small business.
Successful dismissal or legal action for protection against unfair dismissal
We will be glad to explain under which circumstances a dismissal or a claim against unfair dismissal will be successful. In this context, we offer advice prior to a dismissal as well as on filing a claim against unfair dismissal. Our employment lawyers mainly advise medium-sized companies from a wide range of different sectors. In addition, we represent executives and managing directors in disputes with their employers.
Your contract termination lawyer in Germany
Your contact person for all matters concerning dismissal, contract termination, protection against unfair dismissal as well as claims against unfair dismissal in Germany is Termination Attorney Dr. Eric Uftring (Certified Specialist for Employment Law). Please contact us by e-mail (info@winheller.com) or by phone (+49 (0)69 76 75 77 80).
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