Termination because of Corona

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.

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.