Termination because of Corona

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Termination because of Corona - Legally possible or unfounded?

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After a large number of plant closures due to the fatal loss of sales as a result of the Corona pandemic, employees must also fear for their jobs at the present time. The number of dismissals pronounced Cancellations continues to rise steadily. At the same time, the misconception has become increasingly widespread that the current Corona crisis would constitute grounds for dismissal and that the employer is therefore obliged to Cancellation of the employee is entitled.

This is not true and correct! From a purely legal point of view, there is no such "termination due to the Corona pandemic". Rather, the employer's right of termination is limited to the reasons for termination laid down in the law, which have not been adapted or even changed with regard to the Corona pandemic. Therefore, in the event of such a dismissal, active action is urgently required in order to defend oneself specifically and in due time against a dismissal by means of an action for protection against dismissal at the labor court. 

The termination should therefore by no means be simply accepted. This article deals with when a dismissal due to corona can take legal effect and what options employers have in this regard.

When can an employer terminate in connection with the Corona virus?

Termination in connection with Corona

If the respective employment relationship falls under the Dismissal Protection Act, the employee enjoys general protection against dismissal. As a rule, this can be assumed, as it is required that the employee has been working in a company for at least six months and that more than ten people are employed in the company.

This special protection consists in the fact that the employer is now also responsible for a proper Cancellation requires a sufficiently specific reason for the termination to have legal effect against the employee. Only then can a notice of termination be given in accordance with the regulations of the Dismissal Protection Act. However, the dismissal must be based on reasons relating to the person or behavior of the employee or if urgent operational requirements demand this, § Section 1 (2) sentence 1 KSchG.

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Termination for operational reasons

Termination for operational reasons

Termination for operational reasons will be the standard case of corona-related termination. This is generally characterized by the fact that the employer is unable to continue the employment relationship due to urgent operational requirements that prevent the employee from continuing to work. A prime example of this is termination in the event of a plant shutdown due to insolvency.

Now, employers, for their part, may argue that the operations of the business are slumping as a result of the Corona crisis and that the cessation or downsizing of the business is imperative to its maintenance.

It should be noted, however, that a mere drop in sales is not sufficient to justify termination for operational reasons. Rather, the job must be permanently eliminated and no longer needed. This is not usually the case with a merely temporary drop in sales. The employer must be able to explain this aspect in detail on the basis of its order and personnel planning, which is why not only a short-term fluctuation in orders is present, but rather a permanent decline in orders is to be expected.

However, the employer will simply not succeed in doing so. Even if the further course of the Corona virus cannot be predicted, it has only been circulating for a short time and the government shutdown measures are each only limited to a certain period of time, so that one could not speak of a permanent and fundamental decline in orders.

Instead, the employer has all milder means at its disposal to maintain the employee's job. This has to be considered by the employer from the point of view of the so-called ultima ratio principle of the Labor Law to consider.

The principle states that dismissal must always be the last resort after other measures (for example, after a warning or transfer) due to the serious consequences for those affected. Thus, the employer could certainly make it possible to retain the job by ordering short-time work or by reducing working hours - even if only in a limited way.

In addition to these considerations, however, there are further requirements for the effectiveness of the operationally-related Cancellation must be taken into account. Apart from the lack of possibility of further employment in another job, the employer must also not make any mistakes with regard to social selection. The principle of social selection provides that only those employees may be dismissed who are in the least need of social protection.

These are often young people who are employed for a short time, who do not have to fulfill any maintenance obligations and who do not have a severe disability. It is precisely here that employers often make mistakes with regard to their dismissal, usually by initially terminating more expensive employees.

Termination for personal reasons

Termination for personal reasons

In contrast, dismissals for personal reasons, such as dismissal due to infection with the Corona virus or because one has to go into quarantine, are generally invalid. In the case of a viral illness such as Corona, the employee's absence is only temporary and not permanent. In this case, it is also not to be expected that the employee will be unable to perform for a long period of time as a result and that no improvement is to be expected.

Even in the case of quarantine, the period of absence is limited to only 14 days - especially since, apart from this, it is often possible to perform work in a home office. Since termination for personal reasons is linked to quite high requirements, it is worthwhile to check here as well in any case.

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Termination for Behavioral Reasons

Behavioral termination

A behavioral Cancellation could at most be considered in those cases in which an infected employee appears at work without pointing out his or her illness. Under certain circumstances, this could be seen as a culpable breach of contractual obligations.

However, even in these cases the principle of ultima ratio applies. Thus, termination is only possible after a warning and repeated misconduct. There are also significantly high hurdles for the employer in the case of termination for conduct. He can only give notice of termination if an obligation arising from the employment relationship has been breached in such a way that it is unreasonable for him to continue with the contract.

What options can the employee take in such a case?=

Possibilities of the employee

It is indeed possible to take action against dismissals on the grounds of corona. It is possible to file an action for protection against dismissal within three weeks of receipt of the notice of termination. In this context, it is imperative that employees observe the deadline for bringing an action within three weeks of receipt of the written notice of termination, since after the expiry of the deadline the termination becomes finally effective - and this irrespective of whether it actually meets the legal requirements for termination or not!

Therefore, you should by no means remain inactive and in any case in your own interest a corona-conditionally pronounced Cancellation and have them questioned and reviewed as to their effectiveness. It is therefore advisable to obtain comprehensive legal advice, which will ultimately provide you with information about your rights and options. In addition, this would considerably increase your chances of success with regard to a corresponding severance payment or even keeping your job.

Have you been terminated or received a severance agreement from your employer?

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Law firm for labor law in Kerpen, Cologne and Witten

Lawyer for - Labor Law | Criminal Law | IT Law | Data Protection