The one important question that arises when an employer terminates an employee’s employment contract (dismissal): Does the employee have the right to protection against dismissal (in Germany)?
Remember: the period within which action must be brought is short!
For this reason, you need to act fast if you were dismissed from your job.
Employees can only file a suit with the respective labor court within three weeks of receiving a dismissal notice when they have been dismissed with notice in writing. If the labor court does not receive a suit for action by this deadline, the termination is considered lawful. Be sure to schedule an appointment with my office as soon as possible. Click here for more information on my fees for an initial consultation.
It is only possible in rare instances to take action once this period has elapsed. For more information, refer to the article written by RA Rainer Polzin in AA 2007, p. 188 et seqq. [available in German only].
Protection against dismissal with notice
Employees who have been working for a company for more than six months and with more than ten employees are entitled to protection against dismissal with notice. Employers are only allowed to terminate the employment contract if they provide a valid reason as justification. There are three distinctions that need to be made in this regard.
Operational reasons, conduct-related reasons, and person-related reasons
If a company needs to shutter one part of the company’s business, or even the entire company, it is considered an operational reason. If the employer wants to dismiss a number of employees, he/she needs to conduct a social selection. In any other case, the termination of the employment contract is not lawful.
There are reasons for terminating an employment contract for person-related reasons if an employee is unable to work due to a long-term illness.
In the cases of conduct, termination is often only possible after a notice of admonition (Abmahnung) has been issued by the employer. In particular, when it can be expected that the employee will not repeat the conduct.
In the event that an employee files a suit, the employer is required to provide the court with the reasons leading to the termination. The criteria that have been established are quite high. It is often the case that the employer fails at submitting these reasons to the court.
Does the German law on protection against dismissal apply to your company? For more information, refer to the article written by RA Rainer Polzin in AA 2007, p. 188 et seqq. [available in German only].
Employees can also mount a defense against notices of dismissal pending a change of contract (Änderungskündigung). Read this article here for more information.
Protection against dismissal without notice
An employer must provide a substantial reason for wishing to terminate an employment contract without notice. This is generally only the situation when the employee has committed a grave offence. In this event, the length of employment and size of the company play no role.
Likewise, the criteria applied by courts are quite high here.
Protection against dismissal in special cases
The employee has a special protection against dismissal in certain cases. For example, special protection is granted to expectant mothers, employees on parental leave, severely handicapped people, and people serving on works councils. These groups of employees can only be terminated in rare instances. There needs to be a substantial reason and approval from an official authority before this could happen.
Severance for lawsuits dealing with unlawful dismissal
Proceedings before a labor court often deal with determining whether or not the employee is protected against dismissal. Tens of thousands of such cases are heard by the courts in Berlin every year.
The employer runs a huge risk in the process. If the labor court decides in favor of the employee and determines that the dismissal is unlawful, the employer loses the case. The employer is then required to pay the employee’s back wage/salary for the period since dismissal and the employee is not required to work off the time. The employer runs the risk of having to pay an employee for work that the employee did not perform.
For this reason, these proceedings often result in the employee agreeing to a settlement, where he/she receives a severance package.