Termination for operational reasons in labor law

If a severance payment is not offered and dismissal for operational reasons has been announced, the employee only has the option of defending themselves against this. The employee must therefore submit a Legal action against dismissal to the competent local labor court. This is recommended in any case if the employer has not offered severance pay, as it is not the employee's fault that their job has been lost.

It is only important to clarify the costs in advance. If the settlement is too low, this can often be offset by the costs of court and Lawyer be put in the shade. Because even if you win the instances before the labor court, you bear your costs for the Lawyer in a Labor dispute itself, cf. § 12a ArbGG.

Special features in relation to the Protection against dismissal also result for small businesses and Temporary employment agency. For small businesses, the Dismissal Protection Act only applies if there are at least ten employees. If there are fewer than this number, the law does not apply and no social selection must have taken place before the dismissal for operational reasons is announced. Only in very few cases has the Federal Labor Court affirmed a social selection in small companies. However, this has only been in cases where a failure to carry out a social selection has blatantly violated social interests and the existing minimum level of social consideration.

Ultimately, therefore, no general claim to the implementation of social selection in a small company can be asserted from this case law either.

The consideration of temporary employment is not significantly less important, as the principles of social selection also apply to dismissals of employees who have been loaned to another company by a temporary employment agency and are therefore employed by an external company or another company. This is due to the principle that social selection must be carried out on a company-specific basis. This means that the company not only includes employees who are not on assignment, but also those who are.

Even in the case of a temporary employment agency, those employees who are objectively comparable with one another in terms of the workplace must be included in the social selection. The only exclusion criterion is if the employer has concluded a contractual agreement with the hirer that makes it impossible for the hirer to replace or exchange the employee from the temporary employment agency with a more vulnerable employee from the social selection.

There are also stricter requirements for employees on parental leave in the context of dismissals for operational reasons. For example, an employee on parental leave can only be dismissed for operational reasons if there is no other possibility of reinstating the employee after parental leave. This does not depend directly on the time of dismissal, when no job is available, but rather on the time of return. Accordingly, in the event of termination, the employer must ensure that there are no further employment opportunities until then.

Formally, the termination for operational reasons has the requirement that the termination must be signed and the signatory was also authorized to do so. Employees who are listed in the commercial register as representatives of the company are entitled to give notice of termination. However, a personnel manager also counts. A deputy of the personnel manager can only sign the termination for operational reasons if he or she has been granted a specific power of attorney to do so. This power of attorney should be sent directly with the notice of termination in order to directly eliminate any possible formal misunderstandings regarding the termination.

The termination for operational reasons itself may not be verbal, but must be issued in writing on paper. This is stipulated in Section 623 of the German Civil Code (BGB). Termination by text message, email or fax is not permitted. The notice period for termination is based on the regulations for ordinary termination if there is no provision in the employment contract, collective agreement or federal law. The statutory notice periods are the minimum requirements.

If an employer wishes to dismiss several employees in one fell swoop as part of a compulsory redundancy, they must submit a mass redundancy notification to the employment agency. If the employer forgets to do this, there is a risk that the dismissals may be invalid. The purpose of this notification to the employment agency is to be able to take measures in good time to place the affected employees in new employment. The works council, if one exists, must also be involved in the procedure. Employers are obliged to make this notification if there are more than 20 but fewer than 60 employees in the company and more than five of these employees are to be made redundant.

If there are more than 60 but fewer than 500 employees, at least 25 employees or one tenth would have to be made redundant. If there are more than 500 employees, more than 30 employees must be made redundant at the same time. "At the same time" means within 30 calendar days. The obligation to give notice of collective redundancies is set out in § 17 KSchG (Dismissal Protection Act).

As a result, it can be stated that the outcome of a dismissal for operational reasons will be very individual, especially when considering the social selection. In most cases, the employee will no longer have confidence in the employer and vice versa. A attorney Advice is therefore essential and an important prerequisite for asserting personal interests, especially when filing an action for unfair dismissal.