T as in Termination
In what cases is a termination deemed legal?
An employment relationship ends either by mutual agreement through a termination agreement, by the expiry of a fixed term or unilaterally through a declaration of termination by one of the two parties to the contract. The German word “Kündigung” refers to both resignation by the employee and termination by the employer.
What do I have to consider if I want to terminate my employment relationship myself?
Employees are not subject to any restrictions when exercising their right of termination; only the requirement for a written form and the period of notice must be observed. The statutory period of notice is defined in § 622 of the German Civil Code (BGB) and is four weeks to the 15th or to the end of a month, unless otherwise specified in the employment contract, a company agreement or a collective bargaining agreement.
The notice period is automatically extended for notices of termination by the employer the longer the employment relationship has existed. In practice, it is often agreed that the extended notice period also applies to the employee.
When does the Dismissal Protection Act apply?
Dismissals by the employer that are subject to the Dismissal Protection Act (Kündigungsschutzgesetz, KSchG) require social justification, i.e. a reason for termination. The Dismissal Protection Act applies if the employment relationship has lasted at least six months and more than ten employees are employed in the company, not including those employed for vocational training.
A termination is invalid under the Dismissal Protection Act if it is not socially justified. A termination by the employer must be based on a reason that is justified within the person or within the behavior of the employee or is due to urgent operational requirements. Reasons within the person of the employee may be, for example, an illness which prevents the employee from performing the contractually owed work. Reasons within the behavior of the employee are often breaches of duty in the employment relationship. Urgent operational requirements are within the sphere of influence of the employer, such as restructuring or the closure of a firm.
What do I have to do if I receive a notice of termination?
Terminations are considered lawful if they are not challenged before the labor court within three weeks. In his or her action for protection against dismissal, the employer must explain and prove the reasons on which he or she derives his justification for the dismissal. If the employer is unable to do so, the labor court finds that the employment relationship continues.
If you have been terminated, here is a quick guide of what you should to do.
Please note: This is a very general overview on the subject of terminations under german labor law. If you need help in your particular case, please do not hestitate to contact me or book your appointment. I’m happy to help.