In modern employment law, the action for protection against dismissal (KSK) is a key instrument that enables employees to defend themselves against a dismissal that is perceived as unfair. This action provides a platform to have the legality of a dismissal reviewed in court. This comprehensive guide highlights the key aspects of the dismissal protection action and provides valuable insights into when such an action makes sense, what steps are required and why the support of a lawyer can be beneficial in dismissal protection proceedings.
In employment law, an action for unfair dismissal is the legal remedy with which an employee takes action against the termination of their employment contract. The importance of this action lies primarily in the fact that it offers the opportunity to have the legality and factual justification of a dismissal reviewed by a court. This creates a protective mechanism that prevents employees from losing their jobs arbitrarily or for unjustified reasons.
The legal basis for an action for protection against dismissal is the German Protection Against Dismissal Act (KSchG), which defines the conditions under which a dismissal can be classified as socially unjustified. The General Equal Treatment Act (AGG) and other labor law regulations that are intended to prevent discrimination and unfair dismissals also play a role. These laws provide the basis for legal disputes in the context of a KSK.
The Dismissal Protection Act (KSchG) is a central law in German labor law that regulates the conditions and requirements under which an employer can terminate an employment relationship with an employee. It offers employees protection against unjustified dismissal and sets out the legal framework that employers must observe when terminating an employment relationship. The main aspects of the Dismissal Protection Act are explained in more detail below:
The Dismissal Protection Act applies to all employees who have been employed for more than six months in a company that generally has more than ten employees. These thresholds are crucial, as the Act does not apply to smaller companies with ten or fewer employees, which means that protection against dismissal is less comprehensive there.
One of the core elements of the KSchG is the requirement that a dismissal must be socially justified. A dismissal can be socially justified if it is made for one of the following reasons:
Personal reasonsThese exist if the employee is no longer able to perform the work owed due to their personal characteristics or abilities. Examples include permanent illness or the loss of a necessary professional qualification.
Behavioral reasonsThese refer to misconduct by the employee that is so serious that the employer cannot reasonably be expected to continue the employment relationship. As a rule, a prior warning is required, unless there is particularly serious misconduct that justifies immediate dismissal.
Operational reasonsThese exist if the dismissal is due to urgent operational requirements that make it impossible to continue employing the employee. Typical scenarios include economic difficulties, restructuring or the closure of parts of the business.
The KSchG also regulates the special forms of termination, including ordinary and extraordinary termination:
Ordinary terminationThis takes place in compliance with the contractually or legally prescribed notice periods. Social justification must be given.
Extraordinary terminationThis can be done without notice if there is good cause that justifies immediate termination of the employment relationship. It is important that notice of termination is given within two weeks of the good cause becoming known.
The KSchG stipulates that statutory notice periods must be observed for ordinary terminations, which are often based on the length of service of the employee. These periods are set out in the German Civil Code (BGB) and can be extended, but not shortened, by collective agreements or individual employment contracts.
In the case of redundancies for operational reasons, the law prescribes social selection. Employees in comparable positions must be selected on the basis of social criteria such as length of service, age, maintenance obligations and severe disability. The aim is to keep employees in need of social protection in the company.
Employees who wish to defend themselves against a dismissal can file a KSK with the labor court within three weeks of receiving the dismissal. The court will then examine the validity of the dismissal and whether the legal requirements have been met.
In addition to the general provisions of the KSchG, there are special dismissal protection regulations for certain groups of employees. These include, among others:
Pregnant women and mothersYou enjoy special protection against dismissal during pregnancy and up to four months after giving birth.
Works Council membersThese are protected against ordinary dismissal during their term of office and for up to one year thereafter.
Severely disabled people: The approval of the Integration Office is required for their dismissal.
The Dismissal Protection Act plays a central role in German employment law, as it protects employees from unjustified dismissal and sets out clear rules for the termination of employment relationships. Employers must carefully observe the legal requirements of the Dismissal Protection Act in order to avoid legal disputes and negative consequences. Employees should be aware of the protection mechanisms offered by the law and consider taking legal action in good time to protect their rights in the event of dismissal.
An action for unfair dismissal becomes necessary if an employee believes that the dismissal was unlawful. Such cases often occur if the dismissal was discriminatory, arbitrary or without the necessary social justification. For example, a dismissal could be considered unlawful if it is based on discrimination on the grounds of gender, age, religion or disability. In such situations, the KSK offers an opportunity to take action against the dismissal.
Strict deadlines apply for filing a dismissal protection claim. The action must be filed with the competent labor court within three weeks of receiving the notice of termination. This deadline must be adhered to, as a late submission usually leads to the assumption that the dismissal will be considered effective. Employees must ensure that they have all relevant documents such as the employment contract and the letter of dismissal to hand in order to be able to conclusively substantiate the claim.
The first step in the dismissal protection action process is to submit the statement of claim to the competent labor court. In the statement of claim, the employee must explain why they believe the dismissal is unlawful and what evidence they have to support their allegations. The timely and complete submission of the claim is decisive for the further course of the proceedings.
During the preparation phase, all relevant documents and evidence are collected in order to strengthen the plaintiff's position. This includes the employment contract, the letter of dismissal, any warnings and all correspondence with the employer. At this stage, it is also important to identify potential witnesses who can support the claimant's position.
The court hearings provide an opportunity to discuss the dismissal protection claim in detail. As a rule, the proceedings begin with a conciliation hearing in which the court attempts to reach an amicable agreement between the parties. If no agreement is reached, a chamber hearing follows, in which the court examines the evidence and makes a decision. The outcome of the proceedings depends on the evidence presented and the arguments of the parties.
The possible outcomes of a KSK can vary. In the most favorable case, the dismissal is declared invalid so that the employee can return to work. Alternatively, the court may set a severance payment if it is not possible to continue the employment relationship. If the plaintiff does not agree with the judgment, there are opportunities to appeal to request a review of the decision.
A Lawyer for dismissal protection law plays a central role in filing and conducting dismissal protection proceedings. He advises the client comprehensively on the legal options and represents his interests in court. The experience and expertise of a lawyer can make a decisive contribution to the success of the proceedings by helping the client to develop the best possible strategy.
The support of a lawyer offers numerous advantages. An experienced lawyer can realistically assess the chances of success of the claim and inform the client about the best strategies. They can also help with the optimal presentation of evidence and ensure that all legal formalities are followed correctly. This support significantly increases the chances of a positive outcome.
Such a process can involve considerable costs and a certain amount of time. The costs include legal fees and court costs, which can vary depending on the complexity of the case. The duration of the proceedings depends on various factors, including the workload of the court and the willingness of the parties to reach an agreement.
An action for unfair dismissal also involves risks and challenges. There is a possibility that the claim will be dismissed and the employee will have to bear the costs. In addition, the process can be emotionally stressful and put further strain on the relationship with the employer. An experienced lawyer can help to minimize these risks and maximize the chances of success.
The success of a claim depends largely on the quality of the evidence presented. Important documents include the employment contract, letters of dismissal, warnings (if any) and any witness statements. A thorough preservation of evidence can make the difference between success and failure.
Careful preservation of evidence is crucial to the success of the claim. The claimant should keep all relevant documents carefully and ensure that they are available in good time. A lawyer can provide valuable support here and ensure that all relevant information is available in good time.
Clients should have the following documents ready for a successful dismissal protection claim:
The role of legal expenses insurance in the process is of great importance, as it provides employees with financial support and legal security when they seek to take legal action against dismissal. The various aspects of legal expenses insurance in this context are explained in more detail below:
Legal expenses insurance generally covers the costs incurred in connection with a dismissal protection lawsuit. These include
Legal feesThe insurance covers the fees and expenses of a lawyer who represents the employee in court proceedings. As the expertise of a lawyer can be decisive for the success of an action for unfair dismissal, the insurance relieves the employee of these often considerable costs.
Court costsThis includes the fees for filing the claim with the labor court as well as any costs for experts or witnesses who have to appear at the trial.
Procedural costsThis includes all other costs that may be incurred in the course of the proceedings, such as travel expenses for the lawyer or the plaintiff if the court is not at the place of residence or work.
With legal expenses insurance, employees have access to qualified legal advice, often even before the actual legal proceedings take place. Many insurers offer an initial telephone consultation with a lawyer to help policyholders assess the chances of success of a claim and plan the next steps. This legal support can be crucial in making informed decisions and avoiding mistakes that could prejudice the case.
The financial and legal protection provided by legal expenses insurance can be a considerable psychological relief for the employee. The prospect of high costs and uncertainty about the outcome of the proceedings are often stressful. Insurance that covers these risks can help to reduce the stress and worries associated with dismissal protection proceedings.
It is important to note that legal expenses insurance can have different conditions and restrictions. Employees should consider the following points:
Waiting timeMany insurance policies have a waiting period of three months after conclusion of the contract before they provide benefits. It is therefore advisable to take out legal protection insurance at an early stage and not just when there is a threat of termination.
Sum insuredThe insurance conditions determine the amount up to which the costs are covered. It is important that the sum insured is sufficient to cover all potential costs of proceedings.
DeductibleSome insurance policies require an excess that the insured person must pay themselves in the event of a lawsuit. This should be taken into account when choosing an insurance policy.
ExclusionsCertain cases or disputes may be excluded from cover. It is important to check the insurance conditions in detail to ensure that the dismissal protection process is covered.
Legal protection insurance can provide valuable support in the dismissal protection process by reducing financial burdens and guaranteeing legal security. It enables employees to exercise their rights and defend themselves against unlawful dismissal without having to worry about the often considerable costs of legal proceedings. However, employees should check the conditions of their insurance policy carefully and take precautions at an early stage in order to be optimally covered in the event of an emergency.
An action for unfair dismissal offers employees the opportunity to defend themselves against unlawful dismissal. The support of an experienced lawyer is invaluable here. He or she will help to prepare the action optimally, realistically assess the chances of success and represent the client's interests in the best possible way. Clients should act early in order to meet the legal deadlines and prepare all the necessary documents and evidence.
An action for protection against dismissal is a legal action filed by an employee to contest the validity of a dismissal. It enables the employee to have the legality of the dismissal reviewed by the labor court.
An action for unfair dismissal should be filed if the employee is of the opinion that the dismissal was unlawful. This may be the case if the dismissal was discriminatory, arbitrary or without the necessary social justification.
The complaint must be submitted to the competent labor court within three weeks of receipt of the notice of termination. This deadline must be adhered to, as a late submission usually results in the dismissal being deemed effective.
If the three-week deadline for filing a complaint is missed, the dismissal is generally deemed to be effective. However, there are exceptions if the employee can prove that they were prevented from submitting the claim on time through no fault of their own. In such cases, it is possible to apply for the action to be admitted retrospectively.
A dismissal protection lawyer plays a central role in the filing and implementation of a dismissal protection claim. He or she advises the client comprehensively on the legal options and represents their interests in court. The experience and expertise of a lawyer can make a decisive contribution to the success of the proceedings.
Clients should have the following documents ready for a successful dismissal protection claim: Employment contract, letter of dismissal, warnings, correspondence with the employer, payslips and witness statements.
An action for unfair dismissal can be dismissed if the dismissal is deemed to be socially justified, the employee has missed the deadline or the evidence is insufficient. Formal errors when filing the claim can also lead to dismissal.
No, severance pay is not guaranteed. Whether a severance payment is made depends on the court's decision or can be part of a settlement between the employee and employer. In many cases, the parties agree on a severance payment out of court in order to end the employment relationship amicably.
There are various types of legal protection insurance, including traffic legal protection, criminal legal protection, private legal protection and employment legal protection. The latter is crucial for employment law disputes such as unfair dismissal proceedings.
As a rule, it is not possible to take out legal expenses insurance to cover a notice of termination that has already been received, as most policies provide for a waiting period of around three months. Insurance should therefore be taken out preventively.
The deductible is the amount that the insured person must pay themselves in the event of a legal dispute before the insurance covers the remaining costs. It is determined when the contract is concluded and can vary depending on the tariff.
Yes, many legal expenses insurance policies also cover the costs of out-of-court settlements, provided it is an insured area of law. However, it is advisable to check the specific conditions of the insurance policy.
Yes, dismissal protection proceedings can still be conducted even if the employee has found a new job. The aim of the process is to clarify the legality of the dismissal and, if necessary, to obtain a severance payment.
The duration of a dismissal protection process can vary, but it often takes several months. Factors such as the workload of the court and the complexity of the case influence the duration of the proceedings. A settlement can shorten the process considerably.
The action for protection against dismissal is a key instrument for protecting the rights of employees in an employment relationship. It offers employees the opportunity to defend themselves against unlawful dismissal and ensure that their dismissal complies with the law. The support of an experienced solicitor is invaluable as it can significantly increase the chances of success of an unfair dismissal claim. Employees should act early to meet the legal deadlines and prepare all the necessary documents and evidence. Ultimately, the aim of an action for protection against dismissal is to find a fair solution, be it through the reinstatement of the employee or an appropriate severance payment.
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Mr. Patrick Baumfalk, attorney at law
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