Issue a legally effective termination:
How to make terminations legally secure and comprehensible
Issue a legally effective termination
Do you want to terminate an employee? Is extraordinary or regular termination the right way to go? What reasons can be given for termination? And what about the notice periods and protection against dismissal?
Only a legally valid termination can effectively end the employment relationship. Mistakes on the part of the employer when terminating the employment contract can quickly lead to unfair dismissal claims and high severance payments. This can result in lengthy proceedings before the labor court (ArbG) and, in the worst case, disrupt operations. It is therefore very important to observe the requirements of labor law when terminating employment contracts: notice periods, protection against dismissal and, if necessary, the involvement of the works council.
To ensure that the termination is legally effective and legally valid, legal advice is essential. As specialist employment law attorneys, we are here to help you and explain what you need to pay attention to.
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How to cancel successfully
To ensure that your termination is legally effective and legally binding, you should observe the following points:
types of termination
In labor law, two types of termination are distinguished: ordinary (with notice) and extraordinary (without notice) termination. There are also other options for ending the employment relationship:
- challenge: The employment contract can be challenged, for example if the applicant has provided false information during the interview.
- resolutive condition: The employment relationship can be made dependent on a specific condition, such as a time limit. Fixed-term employment contracts cannot be terminated in the normal way.
- termination agreement: Employer and employee can reach a mutual agreement to terminate the employment relationship.
- termination by retirement: This is only possible if the retirement date is specified in a collective agreement, employment contract or works agreement. Otherwise, regular notice of termination is required.
reason for termination
- Ordinary termination
According to the German Civil Code (BGB), a regular termination does not have to be justified. However, according to the German Dismissal Protection Act (KSchG), a reason for termination is required if the company has at least 10 employees and the terminated employee has been employed by the company for at least 6 months. Possible reasons for termination are:- termination for personal reasons: When the employee is no longer able to perform his or her job duties due to injury or chronic illness.
- dismissal for behavioral reasons: If the employee violates contractual obligations through misconduct. The same examples apply here as for extraordinary reasons for termination.
- dismissal for operational reasons: When operational requirements make it impossible to continue employing the employee, for example in the event of staff cuts due to poor economic conditions. In this case, the employer must make a social selection among the employees.
- termination without notice
Termination without notice can only be justified by an extraordinary reason for termination, such as:- threats to colleagues
- Excessive private use of company cell phone or internet
- working time fraud
- Criminal offenses in the workplace, such as sexual harassment, insults, physical assault, theft
- discrimination
- alcohol consumption during working hours
- feigning incapacity to work
- Unauthorized vacation
- refusal to follow work instructions
- disturbances of industrial peace
The continuation of the employment relationship until the end of the regular notice period must be unreasonable in the individual case. Termination without notice should be used as a last resort (ultima ratio). Prior to this, warnings or transfers can be considered as milder measures.
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3notice periods
In the case of ordinary terminations, the notice periods depend on the length of employment:
- 1 month for a period of employment of less than 2 years
- 7 months for a period of employment of 20 years or more
- 2 weeks in the probationary period
In the case of extraordinary terminations, the termination must be announced within 2 weeks of becoming aware of the reason for termination.
Special protection against dismissal
Special protection against dismissal applies, for example, to:
- Pregnant employees according to the Maternity Protection Act (MuSchG)
- trainees under the Vocational Training Act (BBiG)
- military service members according to the Workplace Protection Act (ArbPlSchG)
- Works council members according to the Dismissal Protection Act (KSchG)
- People with disabilities according to the Social Code IX (SGB IX)
- Employees on care or parental leave in accordance with the Care Leave Act (PflegeZG) or the Federal Parental Allowance and Parental Leave Act (BEEG)
- Persons with special functions, such as data protection officers
In these cases, terminations are either excluded or only possible under very strict conditions. Extraordinary terminations are still possible in extreme cases.
unfair dismissal claim
Employees have the option of filing a wrongful termination suit before the labor court. This must be done within 3 weeks; otherwise the termination is considered justified (limitation period).
involvement of the works council
The works council (if there is one) must be informed and consulted before the termination. It can agree or disagree with the termination, but this does not affect the effectiveness of the termination by the employer.written form
The notice of termination must be in writing, i.e. it must be on paper and signed by the employee. The possibility of sending the notice by email, WhatsApp or fax is excluded according to the German Civil Code (BGB). The notice of termination can also be given by a representative of the employer; in this case, the power of attorney should be enclosed to be on the safe side, as the employee could otherwise reject it, which could lead to the notice period expiring.
How we help you
Terminating an employee is a demanding task. We are at your side legally and benefit from our many years of practical experience. As specialist lawyers for employment law, we are familiar with current case law and the complex legal requirements in order to prepare terminations that are legally effective and legally viable. Our support is geared to your individual needs: be it an extraordinary or regular termination, a termination agreement, severance pay or a warning. We advise and represent you professionally and personally. We are happy to clarify the consulting costs in advance so that you know what to expect.
It is important that you contact us quickly, as the notice periods in employment law are sometimes very short (2-3 weeks)
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