The effective termination

Law firm for labor law in Kerpen and Witten

Labor law | Strong partner for employees and employers

The effective termination - proper and legally secure

Law firm for employment law in Kerpen 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 ask themselves how they can properly dismiss affected employees. In the case of ineffective 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 terminate an employee's employment with notice, it is subject to various restrictions. Among other things, this is due to the special protection of the Dismissal Protection Act (KSchG), which states that employers also need a sufficiently specific reason for ordinary dismissals in order for the dismissal to have legal effect against the employee.

Applicability of the Dismissal Protection Act

Application criteria of the KSchG

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).

Types of termination

Definition of ordinary termination

Ordinary dismissal is the most common form of termination of an employment relationship and must meet certain requirements in order to be effective. These include compliance with the notice period and the existence of a reason for termination.

Deadlines

The statutory time limits are set out in the German Civil Code (BGB). They vary depending on the length of service of the employee:

Up to 2 years4 weeks to the 15th or the end of a calendar month
2 to 5 years1 month to the end of a calendar month
5 to 8 years2 months to the end of a calendar month
8 to 10 years3 months to the end of a calendar month
10 to 12 years4 months to the end of a calendar month
12 to 15 years5 months to the end of a calendar month
15 to 20 years6 months to the end of a calendar month
Over 20 years7 months to the end of a calendar month

These periods can be extended, but not shortened, by collective agreements or individual employment contracts.

Legal hurdles

Hurdles of § 1 KSchG to be overcome

If the KSchG 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

Definition: personal

In the case of termination for personal reasons, the reason for termination lies in the person of the employee. This usually relates to the employee's skills and characteristics that they cannot influence. However, not every loss of a skill or characteristic directly justifies a 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 status in the foreseeable future. Even if the prognosis is negative, dismissal may only take place if no milder means are available. The reason for this is the ultima ratio principle in employment law. This states that dismissal 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

Definition: behavioral

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

Definition: operational

Dismissal 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 continued employment of the employee. The reason for the dismissal 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.

Extraordinary termination

Definition of extraordinary termination

Extraordinary termination or termination without notice can be given if there is good cause that makes it unreasonable to expect the employment relationship to continue. Such a reason must be so serious that compliance with the notice period is deemed unreasonable. Examples include theft, fraud or physical assault in the workplace.

Requirements for extraordinary termination

Important reasonThe employer must set out the good cause in detail and justify the unreasonableness of continuing the employment relationship.
WarningAs a rule, the employee must have been warned beforehand, unless the misconduct is so serious that a warning is not necessary.
Notice periodNotice of termination must be given within two weeks of becoming aware of the reason for termination.

Special forms of protection against dismissal

In addition to the general protection against dismissal, there are special protective provisions for certain groups of people in Germany that go beyond the KSchG.

Pregnant women and mothers

Pregnant employees and mothers enjoy special protection against dismissal. Dismissal during pregnancy and up to four months after giving birth is generally not permitted. Exceptions are only possible with the approval of the competent supervisory authority.

Severely disabled people

Severely disabled people are also subject to special protection. Dismissal requires the approval of the integration office. This office checks whether the dismissal is socially justified or amicable.

Works Council members

Members of the works council cannot be dismissed with notice during their term of office. Extraordinary dismissal is only possible under very strict conditions.

Parental leave

Employees on parental leave are also protected against dismissal. The protection applies from the date on which parental leave is applied for and ends at the end of parental leave.

Legal requirements for dismissals of employees in small businesses

Legal requirements

If 10 or fewer employees are regularly employed in a company and the special protection of the KSchG does not apply, employees in small companies are not completely unprotected against dismissal. This raises the question for the employer as to what protection 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

Furthermore, dismissal may not be imposed as a punishment for the employee asserting justified 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 a 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 the world of work, the termination of an employment relationship is a significant step that is associated with numerous legal and emotional challenges for both employers and employees. To ensure legal certainty and avoid misunderstandings, the legislator in Germany has laid down clear formal requirements for dismissals. In this guide, you will learn everything you need to know about the formal requirements that must be observed when terminating an employment relationship.

Written form of termination

Section 623 of the German Civil Code (BGB) stipulates that termination of an employment relationship must always be in writing. This means that it must be in physical form and signed by the person giving notice. Termination of the employment relationship by email, text message, fax or verbally is therefore invalid.

Why the written form?

The written form serves several purposes:

Preservation of evidenceA written document provides clarity as to whether the notice of termination has actually been given and what its content is.
Legal certaintyThe written form ensures that both parties are aware of the seriousness and legal consequences of the transaction.
TransparencyA formally correct letter gives all parties involved the opportunity to prepare for the termination and react accordingly.

Content requirements for the letter of termination

An effective letter of termination must meet certain content requirements:

Sender and recipient: The letter must contain the full name and address of the sender and the recipient. This ensures that there is no confusion and that it can be assigned to the correct person.
Date: The date on which the letter was created must be clearly visible. This is important for the calculation of deadlines and compliance with legal requirements.
Subject: A clear subject such as "Termination of employment" helps to immediately identify the letter as one.
Intention: The intention must be clearly formulated. For example: "I hereby terminate my existing employment relationship with you with due notice at the earliest possible date."
Deadline: Compliance with the statutory or contractually agreed deadline must be made clear in the letter. The exact date of termination should be specified.
Signature: The letter must be signed by hand. An electronic signature is not sufficient. In the case of legal entities, an authorized representative must sign.

Receipt of the letter

For a termination to be effective, it must be received by the recipient. Receipt is deemed to have taken place as soon as the letter has reached the recipient's sphere of influence in such a way that it can be expected to be acknowledged under normal circumstances. This means

Personal handover: A witness should be present at the personal handover or a receipt should be signed to document receipt.
Postal dispatchA registered letter with acknowledgement of receipt can prove receipt. However, the recipient must acknowledge receipt of the letter, not the letter itself.
Drop in the letterboxReceipt is deemed to have taken place when the letter has been placed in the recipient's letterbox and can be expected to be emptied.

Special features of termination by the employer

In the event of termination by the employer, further requirements must be observed:

Works council hearing: In companies with a works council, the works council must be consulted before any dismissal (Section 102 BetrVG). Termination of an employment relationship without prior consultation with the works council is invalid.
Reasons for termination: In the event of ordinary dismissal, the employer must state the reasons in writing at the employee's request. This is particularly important if the employee enjoys protection against dismissal.
Special protection regulations: Additional protective regulations apply to certain groups of people (e.g. pregnant women, severely disabled persons, works council members). The employer must comply with special procedures here, such as obtaining the approval of the relevant authorities.

Notice periods

If no individual provision has been made in the employment contract or collective agreement regarding the termination of the employment relationship, the general provisions of employment law also apply here. According to Section 622 of the German Civil Code (BGB), employers can generally give four weeks' notice to the fifteenth or the end of a month. By way of derogation from this, Section 622 (2) BGB stipulates binding notice periods for the employer, which are extended depending on the length of service and can last up to seven months.

Procedure for dismissal protection claims

Course of the procedure

If an employee is of the opinion that their dismissal is socially unjustified or invalid for other reasons, they can file an action for protection against dismissal (KSK) with the labor court. The deadline for this is three weeks from receipt of the dismissal.

Filing a lawsuitThe employee must file a complaint with the competent labor court within three weeks of receiving notice of termination.
Conciliation hearingAs a rule, the labor court first schedules a conciliation hearing in order to reach an amicable solution between the parties.
Main dateIf no agreement is reached at the conciliation hearing, the main hearing will follow. The situation will be examined and negotiated in depth at this hearing.
VerdictThe court decides whether the dismissal is effective or ineffective. If it is invalid, the employee can demand continued employment.
AppealThe judgment of the labor court can be appealed to the regional labor court.

Possible consequences of an action for unfair dismissal

Continued employmentIf the court finds that the dismissal is invalid, the employee is entitled to continued employment.
Severance payIn many cases, the employer and employee agree on a severance payment, especially if the relationship of trust has been destroyed.
Termination of the employment relationshipIn some cases, an amicable termination of the employment relationship can be sought despite an invalid termination.

Preventive measures for employers

Risk minimization for employers

To minimize the risk of dismissal protection claims, employers should take preventive measures:

DocumentationComprehensive documentation of the employee's work performance and behavior can be helpful in the event of a dispute.
Warnings: As a rule, warnings should be issued before a dismissal for conduct-related reasons.
Works Council: The works council must be properly consulted in the event of dismissals in co-determined companies.
Legal adviceLegal advice in advance of terminations can help to avoid mistakes.

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.

The role of a lawyer in terminating an employment relationship

A lawyer often plays a central role in employment law matters, especially when it comes to the termination of an employment relationship. For both parties - employer and employee - the legal aspects can be complex and challenging. A lawyer offers valuable support and expertise to ensure that the process is legally compliant and efficient.

Advice and preparation

For employers

Legally compliant designA lawyer helps employers to comply with the legal requirements and deadlines. He checks the appropriateness of the grounds for termination and ensures that all formal requirements are met.
DocumentationHe assists with the preparation of the necessary documents and ensures that the works council is properly consulted if necessary.
Strategic planningA lawyer can support employers in the strategic planning and implementation of personnel measures in order to minimize risks.

For employees

Legal clarificationEmployees receive comprehensive advice on their rights and obligations in the event of termination of employment.
Examination of legalityThe lawyer checks the legality of the reasons for termination and advises on whether it makes sense to take legal action.
Negotiation of severance paymentsEmployees can benefit from the support of a lawyer to successfully negotiate a possible severance payment or other conditions.

Representation in legal disputes

A key aspect of the lawyer's work is representation in court. In the event of a dispute over the termination of the employment relationship, the lawyer takes over the conduct of the proceedings and represents the interests of his client in the context of an action for protection against dismissal. The following steps are central to this:

Filing a lawsuitThe lawyer drafts the claim, submits it on time and ensures that all relevant arguments and evidence are presented.
NegotiationHe represents the client in court, negotiates with the opposing party and strives for a favorable solution for the client.
Appointment opportunitiesIf the first-instance judgment is not in the client's favor, the lawyer advises on the prospects of success of an appeal and, if necessary, conducts this appeal.

Psychological support and stress management

In addition to the legal aspects, the emotional component plays a major role in the termination of an employment relationship. A lawyer can guide and support their client through this often stressful process by:

Clarity creates: By explaining the legal framework and the possible steps, uncertainty is reduced.
Building trustA competent lawyer can strengthen his client's trust by showing that he has the situation under control.
Offers emotional reliefA sympathetic ear and understanding of the client's situation are important factors in reducing emotional pressure.

Costs of a lawyer in employment law: a comprehensive overview

The cost of engaging a lawyer in employment law is a key aspect that both employees and employers need to consider when seeking legal advice. These costs can vary significantly depending on the complexity of the case, the scope of services provided and the experience of the solicitor. In this guide, you will learn more about the various factors that influence costs and how you can minimize them if necessary.

Fee schedule and fees

Lawyers' Fees Act (RVG)

In Germany, the Lawyers' Fees Act (RVG) regulates the remuneration of lawyers. It sets out the minimum and maximum fees that a lawyer can charge for their services. The fees under the RVG are based on the value in dispute of the proceedings, i.e. the financial interest associated with the case.

Initial consultationThe lawyer can charge a flat rate for an initial consultation, which may not exceed 190 euros (plus VAT) for consumers.
Remuneration in the proceedingsThe fees for representation in labor court proceedings are made up of the procedural fee, the appointment fee and, if applicable, the settlement fee. The exact amount depends on the amount in dispute.

Fee agreements

In addition to the statutory fees, it is also possible to make individual fee agreements. Flat fees or hourly rates can be agreed. This offers both the lawyer and the client the opportunity to structure the costs transparently.

Hourly rateThe hourly rate can vary depending on the lawyer's experience and specialization, usually between 150 and 500 euros per hour.
Flat-rate feesFor certain services, such as the drafting of contracts or the review of documents, a flat fee may be appropriate.

Costs in the context of legal proceedings

Labor court costs

In labor law, there are special features with regard to court costs:

First instanceIn the first instance before the labor court, each party bears their own legal fees, regardless of the outcome of the proceedings. As a rule, there are no court costs unless the court decides otherwise.
Appeal procedureFrom the second instance onwards, the unsuccessful party or both parties may be required to bear the costs.

Cost risk

The cost risk in employment law proceedings can be considerable, especially if the cases are complex or have to go through several instances. It is therefore important to make a precise calculation and weigh up the prospects of success.

Options for the assumption of costs

Legal expenses insurance

Legal expenses insurance can cover the costs of a lawyer in employment law. It is important to check the insurance conditions carefully, as not all employment law matters are covered. Some insurers offer special employment legal protection packages that also include out-of-court advice.

Waiting timesPlease note that many insurance policies have waiting periods before the insurance cover takes effect.
DeductibleSome insurance policies require a deductible that the policyholder must pay when claiming benefits.

Legal aid

People on low incomes have the option of applying for legal aid (PKH). This state support covers the costs for the court proceedings and, if necessary, for a lawyer if the prospects of success of the proceedings are positive.

ApplicationThe application for legal aid must be submitted to the court and requires proof of your financial situation.
Repayment obligationIf the financial situation improves, it may be necessary to repay the funds granted.

Frequently asked questions (FAQ)

What are the most common mistakes when giving notice?

The most common errors include non-compliance with deadlines, lack of sufficient cause, disregard of special protection and incorrect consultation of the works council.

Can an employee claim protection against dismissal during the probationary period?

As a rule, protection against dismissal does not apply during the probationary period, unless the dismissal is discriminatory or immoral.

Is a verbal termination effective?

No, a dismissal must be in writing to be effective.

What happens if the action for unfair dismissal is successful?

If the KSK is successful, the employer must continue to employ the employee unless another agreement is reached.

When is a severance payment due?

Severance pay is not prescribed by law, but is often agreed as part of termination agreements or in the case of unfair dismissal claims.

When should I consult a lawyer?

It is advisable to consult a lawyer at an early stage as soon as the termination of an employment relationship is being considered, regardless of whether you are an employer or an employee.

What costs will I incur?

The costs for a lawyer in employment law can vary. It is advisable to reach a cost agreement in advance and to find out about the possibility of costs being covered by legal expenses insurance.

Can a lawyer help to reach an out-of-court settlement?

Yes, lawyers are often keen to find an amicable solution in order to avoid lengthy and costly court proceedings.

Will I lose control of the process if I am assisted by a lawyer?

No, a good lawyer will always act in the interests of his client and involve him in all important decisions.

What costs are incurred for employment law advice?

The costs for employment law advice can vary depending on the duration and complexity. An initial consultation can cost up to 190 euros (plus VAT).

Will my legal expenses insurance cover the lawyer's fees?

Whether the legal expenses insurance covers the costs depends on the terms of the contract. Check whether employment law disputes are covered and whether waiting periods or deductibles apply.

Can I deduct the lawyer's fees from my tax bill?

Legal fees in connection with a professional legal dispute can be claimed as income-related expenses for tax purposes under certain circumstances. A detailed examination by a tax advisor is recommended.

What happens if I lose the case?

In the first instance, each party bears its own legal costs. In higher instances, the costs may be imposed on the unsuccessful party.

Is there a way to calculate the costs in advance?

A lawyer can provide an estimate of the likely costs and prepare a calculation based on the amount in dispute and the complexity of the case.

Conclusion

Dismissal protection in Germany is a complex set of regulations that poses considerable challenges for both employers and employees. Employers must proceed carefully when giving notice of dismissal and adhere precisely to the legal requirements in order to avoid legal disputes. Employees should be aware of their rights and consider taking legal action in good time in the event of dismissal. A sound understanding of the legal requirements and current case law is crucial for both sides to effectively protect their interests. Ultimately, protection against dismissal serves the purpose of ensuring a fair balance of interests between the parties and strengthening employees' social security.