The effective termination

Law firm for labor law in Kerpen, Cologne and Witten

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The effective termination - proper and legally secure

Law firm for labor law in Kerpen, Cologne and Witten

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

Qualified personnel are an elementary prerequisite for the success of any company. However, it becomes annoying when the hiring of an employee subsequently turns out to be faulty.

It is therefore not uncommon for employers to wonder how they can properly terminate affected employees. In the case of ineffectively issued Cancellations there is often a risk for the employer of being exposed to a costly legal dispute before the labor court, which could have legal consequences, such as the payment of severance pay or the continuation of the employment relationship.

Particularly due to the great relevance of protection against dismissal in Germany, it is essential for entrepreneurs to deal comprehensively with the relevant regulations on dismissal in order to be able to subsequently carry out such dismissals in a legally secure manner.

Legal requirements for terminations of employees subject to protection against dismissal

Legal requirements of a termination

If an employer wishes to give ordinary notice of termination, he is subject to a variety of restrictions. This is due, among other things, to the special protection against dismissal afforded by the Dismissal Protection Act (KSchG), which is that employers need a sufficiently specific reason even for ordinary terminations so that the termination can have legal effect against the employee.

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Applicability of the German Dismissal Protection Act (Kümndigungsschutzgesetz)

Application criteria of the Dismissal Protection Act

The Dismissal Protection Act applies if

  • the employee has been employed in the company for at least six months without interruption (Sec. 1 (1) KSchG) and
  • more than ten employees are employed in the company (Section 23 KSchG).

Legal hurdles

Hurdles of § 1 KSchG to be overcome

If the Dismissal Protection Act now applies to the employment relationship, the Cancellation only permitted under Section 1 of the German Unfair Dismissals Act (KSchG) if it is socially justified. The social justification can arise from three reasons - namely personal reasons, behavioral reasons and operational reasons.

Termination for personal reasons

Termination - personal

In the case of termination for personal reasons, the reason for termination lies in the person of the employee. This regularly relates to the employee's abilities and characteristics, which the employee cannot influence. However, not every loss of a skill or characteristic directly justifies a dismissal. Cancellation. In addition, contractual or operational interests must be impaired. This means that the loss of the characteristic must have such a major impact that the operational process is permanently disrupted. Examples include the loss of a bus driver's license or the employee serving a prison sentence.

In addition, a prognosis must show that the employee will not regain the capacity in the foreseeable future. Even if the prognosis should then turn out to be negative, notice of termination may only be given if no milder means is available. The reason for this is the principle of ultima ratio prevailing in labor law. This states that termination must always be the last resort after other measures (such as retraining or transfer) due to the serious consequences for the person concerned.

The termination for behavioral reasons

Termination - for reasons of conduct

Dismissal on grounds of conduct can take place if the reasons for this lie in the conduct of the employee himself. The employee must have violated contractual obligations to such an extent that continued employment is unreasonable for the employer. A significant breach of contract exists, for example, in the case of persistent tardiness, unexcused absences or theft.

It should be expressly noted, however, that even in the event of such violations, a warning is initially required. Only in the event of repeated misconduct is the pronouncement of the Cancellation possible. In addition, a prognosis decision must be made here as well, in which it must be determined whether the employee will repeat his or her behavior in violation of the contract.

Termination for operational reasons

Termination - operational

Termination for operational reasons 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. The reason for the termination is therefore not in the sphere of the employee, but in that of the employer. For example, some employers want to rationalize production processes, sometimes there is a restructuring in the company, in the worst case there is even the threat of insolvency.

However, other strict requirements must also be observed. There must be an urgent operational requirement to eliminate the position. In addition, the interests of the employer must be weighed against each other. Furthermore, the employer must make a social selection in accordance with Section 1 (3) KSchG. This means that only those employees who are socially least in need of protection may be dismissed.

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Legal requirements for dismissals of employees in small businesses

Legal requirements

If a company regularly employs 10 or fewer employees and therefore does not enjoy the special protection of the Dismissal Protection Act employees in small companies are not completely unprotected against dismissal. Accordingly, the question arises here as well for the employer as to what protection against dismissal employees in small businesses enjoy.

Scope of protection against dismissal in small businesses

Scope of the protection against dismissal

Even in a small company, termination must not be arbitrary or based on irrelevant motives. Therefore, employers must observe some general regulations.

Special protection against dismissal

Some groups of people enjoy so-called special protection against dismissal. These persons are considered to be particularly worthy of social protection and are therefore afforded greater protection against the loss of their jobs than other employees. These include severely disabled persons, pregnant women and mothers up to four months after childbirth, as well as employees on parental leave and members of the works council.

Prohibition of dimensional rules according to § 612a BGB

In addition, the termination may not be given as a punishment for the employee making legitimate claims.

Prohibition of discrimination

Dismissal on the grounds of race, ethnic origin, gender, religion or belief, disability, age or sexual identification is not permitted unless there is justification for the unequal treatment.

Prohibition of immorality

In addition, a termination must not be immoral. This would be assumed if it were issued solely on the basis of reprehensible motives such as vindictiveness.

Scope of protection against dismissal in small businesses

In addition to these aspects of content, however, employers must nevertheless comply with the usual formal legal requirements that result from the German Civil Code and are therefore also fully applicable to the small business.

Formal requirements

Notice of termination must be given in writing, Section 623 of the German Civil Code (BGB). The notice of termination must therefore be made on paper and signed by hand. It is not sufficient to give notice of termination by e-mail. Furthermore, the notice of termination must be clearly and unambiguously declared. Any doubts about the content of the notice of termination shall be borne by the party making the declaration. The letter of termination must also be received by the employee, either by handing it over to him personally or by sending it to him by post.

Notice periods

If no individual regulation on termination of the employment relationship has been agreed in the employment contract or collective agreement, the general provisions of labor law also apply here. Pursuant to Section 622 of the German Civil Code (BGB), employers may in principle give four weeks' notice of termination to the fifteenth or to the end of a month. In deviation from this, Section 622 (2) of the German Civil Code regulates notice periods that are binding for the employer, which are extended depending on the length of service and can be up to seven months.

Recommendation for employers

Due to the strict hurdles to the termination of employees that have been pointed out, entrepreneurs should only issue a notice of termination after a comprehensive review of its effectiveness. It is therefore advisable to familiarize oneself with the standards relevant to termination. Nevertheless, it has often been proven in practice that mistakes in this regard cannot be ruled out as a result of the sometimes unmanageable requirements of labor law. Therefore, it is always advisable to consult a lawyer who will advise you in detail on the termination process and take legal action on your behalf.

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

Then contact us

+49 (0) 2273 - 40 68 504

Law firm for labor law in Kerpen, Cologne and Witten

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