Termination of the employment contract – protection against dismissal

Well-founded information after termination of your employment contract

You've probably landed on this page because you, as an employee, or a loved one, have been given notice of termination. Or because the termination of your employment contract is imminent. You're unsure whether your employer can simply dismiss you. And whether you're entitled to severance pay in this case. Right up front, as Lawyer for terminations in Hamburg I'm available for you at any time. Feel free to contact me directly.

In this article you will learn about Basics of termination of employment provided by the employer. You will receive valuable initial information about,

• whether you as an employee are protected against dismissal,
• when the termination of your employment contract is ineffective and you can successfully take action against it,
• what your “homework” is in the event of termination, so that you are legally on the safe side and
• in which cases you will receive severance pay in the event of termination.

What the severance pay As for the severance pay section, well, it's complicated. I invite you to read on to the severance pay section. I promise you that it will be worth the read. Afterward, you will know exactly what you need to do to prevent the termination of your employment. And, if you wish, you can immediately receive an initial assessment of your chances of receiving severance pay in a Termination agreement through our severance pay calculator.

Podcast: Five expensive mistakes after receiving a termination notice

First, we consider it our duty to draw your attention to our podcast episode on costly mistakes after a termination. Here you'll find the mistakes you should definitely avoid if you're about to terminate your employment. If you heed the tips there, you'll be on the safe side when it comes to your termination.

Overview: These terminations exist

Before we discuss your protection against dismissal, we would like to inform you about the different types of dismissals. If your employer terminates your employment contract, you must first ask yourself the following: Is it a ordinary termination with notice or extraordinary termination without notice?

The ordinary termination within the period of notice

In the case of a regular termination of the employment relationship, the employer will observe the applicable notice period. Such a termination would read approximately as follows:

We hereby terminate your employment relationship in accordance with the statutory notice period, effective as of the earliest possible date; according to our calculations, this is November 30, 2020.

or:

We hereby terminate the employment relationship between us with due notice effective November 30, 2020. Alternatively, we terminate at the earliest possible date.

The employer states the reasons for termination in the Letter of termination Usually not. He is not legally obligated to do so in the case of a regular termination. In principle, the following grounds for termination are conceivable:

• Dismissal for operational reasons
• Termination for personal reasons
• Dismissal for misconduct.

The dismissal due to illness of the employment contract is a case of dismissal for personal reasons.

The extraordinary termination without notice

However, if the employer extraordinary termination without notice he wishes to terminate the employment relationship immediately. You can recognize an extraordinary termination of the employment relationship without notice by the following wording:

We hereby terminate the employment relationship with you with immediate effect, alternatively with due notice, effective November 30, 2020, or, most alternatively, at the earliest possible date.

Employers may only terminate employment for good cause in exceptional cases, when there is a serious breach of duty by the employee. Termination for cause and suspicionIn the case of dismissal for cause, the employer is certain of a serious breach of duty. Suspicion-based dismissal From the employer's point of view, there is only a high probability of a breach of duty.

Apart from serious breaches of duty, termination of an employment relationship for cause is only considered in rare exceptional cases. This is the case, for example, when ordinary termination is excluded by collective bargaining agreement.

Notice of change

Then there is the change of contract notice. Notice of change In principle, this also includes the termination of the employment relationship. This is also assessed against the standard of social justification In contrast to a normal termination, however, the employer also makes the employee an offer of change with new working conditions in a termination with change of employment. The employee then has the choice: either to accept the offer or to reject it. He can also accept it with reservations and Protection against changes insert.

Of course, the change of notice also requires a personal, behavioral or operational reasons for dismissal The assessment of social justification also applies to the new working conditions offered to the employee.

Overview of terminations of employment contracts:

Protection against dismissal of employees

Now comes something crucial: The most important pillar of your protection against dismissal is the Dismissal Protection ActOnly if the protection against dismissal applies can you successfully challenge the dismissal.

The reason for this is that, outside of the Dismissal Protection Act, dismissal is (almost) without cause. In this case, it is sufficient for your employer to maintain a minimum level of social consideration when dismissing an employee. Or rather, to not issue a dismissal at an inopportune time.

Protection of employees through the Dismissal Protection Act

In other words, termination of an employment contract is almost always possible without any further ado – unless the Dismissal Protection Act applies. Conversely, under the Dismissal Protection Act, the employer must provide a reason for termination for employee protection reasons, which makes termination significantly more difficult.

The legislature has attempted to fairly balance the interests of employers and employees.

Special protection against dismissal based on characteristics

In addition, there are situations in which employees Special protection against dismissal In some cases, the employer not only needs a valid reason under the Dismissal Protection Act to make the dismissal legal, but he must also Approval of the competent state authority Such consent is required, for example, if the employer wishes to terminate women on maternity leave or employees on parental leave. Or if the person being terminated has a severe disability or if equal treatment exists.

The consent requirement makes it significantly more difficult for employers to terminate the employment of these employees. However, and this is often misunderstood, termination is not impossible. It simply cannot be related to maternity leave, parental leave, or severe disability. Furthermore, state authorities decide on the approval of a termination based on the particular social protection needs of these groups of people.

Special protection against dismissal due to function

The aforementioned special protection against dismissal is linked to the individual employee. However, there is also special protection against dismissal if employees hold certain positions within the company or business. In such cases, ordinary dismissal is not possible at all – even with the approval of an authority. Above all, Works councils or Staff councils to think, but other positions also lead to special protection against dismissal:

• Data protection officer
• Immission control officer
• Waste officer

Even if employees exercise certain rights or comply with certain legal obligations, special protection against dismissal is provided:

• Care of relatives according to the Care Leave Act
• military or civilian service personnel

Contractual protection against dismissal

In addition, extended protection against dismissal can also result from collective bargaining agreements. In some cases, even the ordinary dismissal of employees is collective agreements excluded. Either certain groups of employees can be excluded from ordinary termination. Or, ordinary non-termination occurs automatically after a certain length of service.

Prohibition of disciplinary action by dismissal

Finally, the so-called Prohibition of disciplinary actionThis means that an employer may not disciplinary action against an employee by terminating their employment relationship simply because they exercise their rights.

Types of protection against dismissal:

Protection against dismissal through the Dismissal Protection Act

In the vast majority of cases, your protection against dismissal depends on the applicability of the Dismissal Protection Act. Dismissal Protection Act is the key to success, regardless of whether you want to get your job back or receive severance pay. It generally applies under two conditions:

1. You have been continuously employed in the same business or company for more than six months.
2. The company usually employs more than ten people.

In many cases, the question of whether the Dismissal Protection Act applies poses no difficulties. However, there are also situations where the devil is literally in the detail. We would therefore like to provide you with further information on both of these requirements.

Employment relationship of more than six months

The waiting period usually begins when the employment relationship is established. The decisive factor is the point in time from which you are available to the employer. If you start working for the employer immediately after signing an employment contract, the point in time from which the employment contract is concluded is decisive.

Start of activity at a later date

However, it often happens that an employment contract is concluded, but the start of employment only occurs at a later date. In this case, the start of the waiting period would generally be determined by the date on which employment commences according to the employment contract. However, according to the case law of the Federal Labor Court, this is not mandatory if the parties intend to initiate their rights and obligations at the time the employment contract is concluded, but the employee is initially de facto released from their employment obligations.
Federal Labor Court, judgment of 24 October 2013 – 2 AZR 1057/12

Calculating the waiting period

When calculating the waiting period, the Day of starting work, which the parties have agreed upon. If the parties have agreed on October 12, 2020, as the start date of work, the waiting period ends on April 11, 2021.

When interruptions are harmful

The employment relationship must have existed continuously for more than six months from the beginning. Interruptions are only harmless if

• between two different employment relationships that follow one another seamlessly close factual connection exists or
• the employment relationship relatively briefly interrupted and there is a close factual connection between the employment relationships.

Federal Labor Court, judgment of July 7, 2011 – 2 AZR 12/10

If these conditions are not met, interruptions are always significant with regard to the waiting period and lead to the beginning of a new waiting period.

Previous employment, vocational training, corporate activity

When calculating the waiting time, periods of Previous employment in a different status, for example as a freelancer, is not taken into account.

In contrast, times of a previous Vocational training Part-time work must also be taken into account when calculating the waiting period.

Previous periods of employment in another company within the group are not counted toward the waiting period. In this case, explicit recognition of previous employment is required.

Usually more than 10 employees in the company

In principle, the company must more than ten employees must be present so that the Dismissal Protection Act can apply, § 23 Consumer Protection Act.

No protection against dismissal for small businesses

The so-called small businesseswho do not reach this threshold. The legislator is of the opinion that in small businesses, teamwork regularly takes place in small circles. Collaboration here requires a high level of mutual trust and a good working atmosphere. This justifies excluding these businesses from the Dismissal Protection Act. This means: If you are employed in a small business, you have no general protection against dismissal. Then you can be fired without reason.

What is meant by a business

The "operation" referred to here is not to be confused with the company. Case law defines an operation as follows:

According to this definition, the undertaking is the organisational unit of work equipment with the help of which the employer, alone or jointly with his employees, uses technical and immaterial means to continuously pursue a specific work-related purpose that does not lie solely in the satisfaction of his own needs. Federal Labor Court, judgment of 19 July 2016 – 2 AZR 468/15

The Company size is therefore initially irrelevant for the calculation of employees. If a company has fewer than ten employees, but the company, for example, has 50 or more employees, the protection against dismissal does not generally apply to that company. The size of the company can only play a role if, in an overall assessment, the application of the small business clauses based on the specific organization in the company is incompatible with the meaning and purpose of the privilege. There must be a unfair discrimination against affected employees This will put a stop to the splitting up of companies into small businesses, which would be detrimental to employees' protection against dismissal.

Part-time workers are only counted proportionally

When calculating the number of employees in a company, only full-time employees are counted as 1.0, excluding those employed for vocational training. For those with fewer working hours, a distinction must be made:

• Part-time employees with a regular weekly working time of not more than 20 hours will be with 0,5 set
• Part-time employees with a regular weekly working time of not more than 30 hours will be with 0,75 taken into account

Typical employment situation is crucial in calculation

In operation, “usually" more than ten employees are employed. This means that periods that are atypical for the respective company are not taken into account. To determine this, a Review of the current personnel situation and a Assessment of future developments The decisive factor is the employment situation, which is generally characteristic of the company.
Federal Labor Court, judgment of 22 January 2004 – 2 AZR 237/03

Joint operation: Employees are counted together

Sometimes in practice there is a joint operation of several companies This is characterized by the fact that the existing tangible and intangible resources are combined, organized, and systematically controlled under a unified management for the pursuit of a uniform technical purpose. The basis of the cooperation is a Agreement between the companies thus affiliatedto manage the business jointly and to jointly carry out the core employer functions in the social and personnel areas under unified management to exercise.
Federal Labor Court, judgment of 24 May 2012 – 2 AZR 62/11

In the case of a joint venture, the employees must be counted together for the purpose of determining whether the Dismissal Protection Act applies. This may result in the ten-employee threshold being exceeded.

Dismissal Protection Act: Everything about the reasons for dismissal

If the Dismissal Protection Act is applicable, this has far-reaching consequences for you as an employee and for the employer. This means that you can no longer simply be dismissed. Termination of the employment relationship will then take place on Standard of social justification This means that the employer then needs a Reason for termination for termination. After Section 1 paragraph 2 KSchG A dismissal is socially unjustified – and therefore ineffective – if it is not

• by reasons in the person or
• in the behavior of the employee or
• due to urgent operational requirements that prevent continued employment,

is conditional.

Examples of dismissal for conduct-related, personal and operational reasons

Reasons in the person can be:

• Frequent short-term illnesses over a longer period
• Long-term illness
• occupational disability
• Work performance significantly below average
• Loss of license to practice the profession

Reasons in the behavior of the employee:

• Physical assault or insults
• Theft or fraud to the detriment of the employer
• Working time fraud
• (Repeated) violation of company rules

Finally, a few words about the urgent operational requirements. Due to external or internal circumstances, your job may be lost. Examples of urgent operational requirements include:

• Decline in sales
• Plant closure
• Restructuring with job losses
• Staff reductions due to business decision

The validity of any termination of an employment contract is subject to specific criteria. For example, in the case of a termination based on personal or behavioral reasons, the termination must be relatively In the case of dismissal for conduct reasons, a prior Disciplinary warning be pronounced.

In addition, the employer must Balancing of interests between the employee and the employer. This must be to the detriment of the employee. In the case of dismissal for operational reasons, there must be no Possibility of continued employment in the company. And: The employer must generally Social selection Because dismissal for operational reasons is intended to affect those who are socially least deserving of protection.

Termination without reason is ineffective

If the employer cannot base his dismissal on one of these grounds, the dismissal is socially unjustified and therefore invalid. This means that the employment relationship continues for you. However, you must challenge the invalidity of the dismissal by filing an appeal. Dismissal protection suit After receiving the notice of termination, you have the right to three weeks Time.

Legal action against dismissal is usually only appropriate in cases where the Dismissal Protection Act is applicable. Only then is there generally a prospect of success or of achieving the objectives, which would be: Continued employment (judgment) or achieving a Severance payment (Comparison).

Special protection against dismissal for employees

In addition to the general protection against dismissal, there is also special protection against dismissal.

• to a characteristic of the employee,
• a special function performed by the employee or
• to the employee's living circumstances

The special protection against dismissal applies in particular to the following groups of employees:

• Works councils and staff councils
• Pregnant women and employees on parental leave
• Severely disabled employees
• Employees treated as severely disabled
• Data protection officer
• Waste officer

Special protection against dismissal does not equal non-dismissibility

However, the existence of special protection against dismissal does not mean that these groups of people are immune from dismissal in all cases. Just imagine the situation of corporate insolvency. If the company is liquidated and the plants are closed, there are no more jobs. This eliminates the employment opportunities for employees.

Admittedly, this is an exceptional situation. But even below this threshold, termination remains possible for the employer under certain conditions. pregnant women and employees in Parental leave For example, the employer needs the Approval of the state authority responsible for occupational safety. At Works councils and staff councils The following applies: They are legally non-terminable except in the event of a plant closure. However, if a works council member bugs the employer—a recent case we heard about—then the employer can, of course, terminate the employment contract without notice.

Fundamentally, however, the existing special protection against dismissal complicates the termination process for employers. Works councils or staff councils must have seriously violated their contractual obligations for the employer to terminate their employment. For pregnant women and employees on parental leave, the Occupational Safety and Health Authority is also involved. It only grants its approval for termination if the particularly vulnerable interests The burden on employers is high in individual cases.

Special contractual protection against dismissal possible

By the way: Special protection against dismissal is not only provided by law. Special protection against dismissal is also conceivable through contracts. Especially employees covered by collective agreements who have been employed for a long time can sometimes benefit from ordinary non-terminability.

Form of termination of the employment relationship

What do you think: How can your employer terminate your employment? Orally? By email or fax? Or perhaps in court, as a lawyer I once had a dispute with did? That may have been amusing, but it wasn't effective.

The form in which the termination of the employment relationship must take is clearly regulated by law. § 623 German Civil Code is relatively easy to understand:

The termination of employment relationships by notice of termination or termination agreement requires the written form; electronic form is excluded.

Written form means that the employer personally issues the notice of termination Signature must be signed. Any other form of signature will inevitably render the termination invalid.

It's always worth checking the signature line on a notice of termination. If you've received a notice of termination, the first thing you should do is check whether the notice is even signed. If not, congratulations.

But even copies with a signature are worth taking a closer look. Some managers are so busy that they don't even have time to sign. Instead, the secretary adds the signature stored on the computer to the termination notice. Et voilà – the termination notice is invalid because there is no signature.

And another tip at this point. Please also check who signed the termination notice. Quite often, the termination notice is signed by persons who are not authorized to do so. In this case, you – or we for you – can Reject termination of the employment contract.

Notice periods for employees and employers

When it comes to notice periods, it doesn't matter whether the Dismissal Protection Act applies in your case. The employer must always adhere to the notice periods when terminating an employment relationship, unless the termination is without notice. The employee must also adhere to the notice period if they wish to terminate the employment relationship. But what is the relevant notice period?

The statutory notice periods are not always relevant

Unfortunately, we cannot give a general answer to this question. Notice periods can be stipulated by law, but also by your employment contract or collective agreement. It is important for you to know the following: The law contains notice periods that may not be exceeded. Therefore, a regulation in the employment contract invalid or inapplicable if it falls short of the statutory notice period. However, an exception applies if you are in the probationary period During this phase, the employer can terminate the employment relationship with a Deadline of two weeks quit.

In contrast, in collective agreements A longer or shorter notice period may be provided for. Some collective bargaining agreements in certain sectors have significantly shorter notice periods than those stipulated by law, especially in the initial phase. In the cleaning industry, for example, the notice periods are particularly short, initially only a few days. In the security and guarding industry, the notice periods are also shorter.

Longer notice periods than permitted by law

Apart from the probationary period and collective agreements, the statutory notice periods must generally be observed. However, it is also possible that the employee and employer agree on longer deadlines. The agreement of deadlines deviating from the law is perfectly permissible – as long as they are not exceeded. The reason for this is clear: In the event of an employee's termination, the employer needs time to find a suitable replacement.

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Statutory notice periods in the first two years

But what are the statutory notice periods? As already mentioned, the notice period in the probationary period two weeks. If no probationary period has been agreed or has already expired, the period shall be determined by Section 622 para. 1 German Civil Code. It says:

The employment relationship of a worker or employee (employee) may be terminated with four weeks' notice to the fifteenth or the end of a calendar month.

The statutory notice period after the end of the probationary period is four weeksIn addition, the employment relationship can only on the 15th or at the end of a calendar month can be terminated by both the employer and the employee.

The statutory notice period after two years

However, the notice period in an employment relationship is dynamic. Notice period increases with increasing length of employmentThis means that the law provides a range from two weeks to seven months at the end of the month. The individual gradations can be found in the table below:

Important: These notice periods initially only apply “for termination by the employer”. For the employee, without further agreement Section 622 para. 1 German Civil Code This applies to four weeks to the 15th of a month or the end of the month. Employers are nevertheless permitted to stipulate extended notice periods for employees in their employment contracts. You should be aware that this is actually the norm. However, employers sometimes forget to include the equal treatment clause in the employment contract.

Extraordinary termination without notice

Extraordinary termination without notice is the sharpest weapon in employment law. As you already know, employers usually require a reason for termination. This is always the case when the Dismissal Protection Act applies. In addition, the employer must comply with the notice periods. This is different with extraordinary termination without notice: The employer does not comply with the notice period, but terminates you immediately. Effective immediately, you no longer have a job and receive no salary.

Termination without notice only for important reasons

This is precisely why termination without notice is the sharpest weapon. It goes without saying that it can only be permitted under strict conditions. These conditions are set out in Section 626 para. 1 German Civil Code defined:

The employment relationship can be terminated by either party for important reasons be terminated without observing a period of notice if there are facts on the basis of which the terminating party, taking into account all Circumstances of the individual case and under Balancing the interests of both contracting parties the continuation of the employment relationship until the expiry of the notice period or until the agreed termination of the employment relationship cannot be expected.

Then a termination without notice can be effective

So it must (1) There is not just any reason, but an important reason for termination without notice. And (2) The continuation of the employment relationship must be unreasonable for the employer (or employee). Whether this is the case is determined by the courts by weighing the conflicting interests. The court therefore examines the matter in two steps:

(1) Is the fact “in itself” suitable as an important reason?

(2) Is the continuation of the employment relationship reasonable, taking into account the specific circumstances of the case and balancing the interests of both parties, until the expiry of the notice period?

Is that too vague for you? Yes, you're right. It's not really that clear. That's why case law Case groups for extraordinary termination without notice formed. Example:

Case groups of termination without notice

Offenses committed to the detriment of the employer Property or financial crimes, but also non-criminal, similar serious acts directly against the employer's assets are typically considered grounds for extraordinary termination – regardless of the value of the object of the crime and the amount of damage incurred.
Federal Labor Court, judgment of 10 June 2010 – 2 AZR 541/09 on the “Emmely” case

Of course, this isn't the only case of extraordinary termination without notice. Other examples include:

• Physical assault and insults against superiors
• Threats against superiors
• Unauthorized use of vacation
• Report to employer (if disproportionate reaction)
• Feigning incapacity for work
• Persistent refusal to work

Serious employee misconduct is usually grounds for extraordinary dismissal. However, in exceptional cases, it may also be justified for personal or operational reasons.

Notice period of two weeks in case of termination without notice

The employer cannot wait forever to terminate the employment without notice. Rather, he must adhere to a relatively short notice period. Section 626 para. 2 German Civil Code termination without notice is only within two weeks possible upon knowledge of the relevant facts.

If the employer has certain knowledge of the theft and does not take action, he forfeits his right to terminate the employment without notice after two weeks. However, as long as the employer Facts not sufficiently clarified The deadline hasn't yet started. Especially if the employer only has a suspicion, he or she must be able to investigate calmly.

Blocking period likely in case of termination of employment contract without notice

An extraordinary termination of an employment contract without notice is problematic for employees in several respects. Not only do they lose their job overnight. What's more, they receive no salary from now on And it gets worse: they usually do not receive unemployment benefits either, as the agency Blocking period of 12 weeks In addition, there will be a Reduction in benefits by a quarter.

That in the case of termination without notice then also the Employment reference doesn't turn out particularly well, fits seamlessly into this unfortunate scenario. For this reason, it's important for employees to take legal action against the extraordinary termination without notice. With or without a lawyer. Regardless of what happened, the goal must be to convert the extraordinary termination without notice into a regular termination through a settlement.

Without wishing to advertise our services here, avoiding the suspension period is unfortunately not that easy. Many things come into play. Please seek advice from a qualified professional. This is still significantly more cost-effective than a suspension period.

Common termination mistake: Works council hearing

Some companies have a works council. This is even the norm, especially in larger companies, unless they use dubious methods to oppose the establishment of a company. The presence of a works council does not directly mean increased protection against dismissal. However, it does increase the formal hurdles for the employer.

Works council consultation required before termination

In companies with a works council, the employer must appoint the body before any termination is announcedIf the employer fails to hold a hearing and terminates the employment, the termination is irretrievably void. This all follows from Section 102 para. 1 Works Constitution Act, which reads as follows:

The works council must be consulted before any dismissal. The employer must inform the works council of the reasons for the dismissal. A dismissal issued without consulting the works council is invalid.

In order for the works council to gain an overview of the dismissal, the employer must inform the council of all circumstances relevant to its dismissal decision. This naturally includes the Termination circumstances and the employee's social dataDepending on the type of termination, further aspects may apply. For example, in the case of termination of employment for operational reasons, the hearing must also cover the Continued employment and Social selection behave.

Termination of employment is ineffective if the consultation is incorrect

If the employer fails to disclose all the circumstances that led to the termination, the hearing is incomplete and therefore flawed. The resulting termination would be contestable. The same applies, of course, if the employer fails to conduct the required hearing altogether.

In the case of ordinary termination, the works council a week's timeto comment on the termination. The employee can agree, raise concerns, or not comment. Alternatively, the works council can object. An objection greatly improves the employee's procedural position.

In the case of extraordinary dismissal, the works council has only three days timeto comment.

Filing a dismissal protection suit

If a termination is in the world, there is (almost) only one measure that can really help you: The Dismissal protection suit. With the unfair dismissal claim

• prevent the termination from becoming final after three weeks,
• subject the termination to judicial review and
• preserve the chances of receiving severance pay or
• regaining your job.

Filing an unfair dismissal claim is therefore a cardinal duty for you if you really want to defend yourself against the dismissal.

Important: 3 weeks to file a wrongful termination suit

As you probably already know, after receiving the notice of termination only three weeks for the unfair dismissal claim. If you miss this deadline, you can no longer do anything about the dismissal. The law simply assumes – presumes – that it is effective. However, this also means that your employment relationship will end on the date stated in the notice of termination. Without severance pay. This harsh consequence arises from § 7 Consumer Protection Act.

Because of this: Whatever your plans, please be mindful of the three-week deadline if you truly want to receive severance pay or get your job back. You can file a wrongful termination claim with the labor court that has jurisdiction over you. The labor court that has jurisdiction is usually determined by either the location of your employer's registered office or your place of work.

Procedure for filing a lawsuit

You can Dismissal protection suit by a lawyer You can file a complaint with the court, but you do not have to. Legal Advice Office of the respective labor court. Whether proceeding without a lawyer makes sense is another matter. A lawyer is certainly expensive. In my experience, and I say this with no ulterior motive, the money is usually quickly recouped.

Overall, the Termination process looks something like this:

1

Access Termination

Either the employer will hand you the notice of termination in person or you will receive it by messenger/post.

2

Advice from a lawyer

After receiving the notice of termination, arrange a consultation with a lawyer of your choice.

3

Dismissal protection suit

Your lawyer will file a wrongful termination suit on your behalf with the relevant labor court.

4

Conciliation hearing

Depending on the respective labor court, the conciliation hearing takes place three to six weeks later.

5

Chamber hearing

If no settlement is reached at the conciliation hearing, the case continues with the decision hearing – the so-called chamber hearing.

6

Settlement or judgment

Settlements are also often reached in chamber proceedings. If not, the court issues a judgment.

Severance pay upon termination

“If I’m fired, am I at least entitled to severance pay?” This question is received as Specialist lawyer for labor law almost daily. And I always have to give the same answer: A Right to severance pay In the event of dismissal, the Dismissal Protection Act stipulates that Exception. Don't believe it? Then read on. Or open our comprehensive guide to severance pay upon termination. No questions will remain unanswered here.

No severance pay protection, but job protection

The unfair dismissal proceedings are not intended to obtain severance pay. In this respect, our legal system differs from that of other EU countries. When you file a wrongful dismissal claim, it is generally aimed at two things:

1. Determination of the invalidity of the termination
2. Continued employment

If you win the unfair dismissal case, it only confirms that the dismissal is invalid. That your employment relationship continues. And that you have the right to be employed by your employer.

Why employers still pay severance pay

And yet: You have probably read in many places or heard from friends that employers have paid severance pay. You should know that these employers were not legally obligated to pay severance pay. Rather, they received this severance pay. voluntarily paid.

The idea behind this is the following: Just because an employer has given notice of termination does not mean that the termination is invalid. There are many Sources of errorReason for dismissal is doubtful, consultation with the works council is incorrect, formal errors, etc. This means that employers often cannot be sure until the judgment is reached whether their dismissal has effectively ended the employment relationship.

Now imagine the Termination of the employment contract is ineffective and the court grants the unfair dismissal claim. What consequences would this have for the employer? He would first Pay back wages for the past months because he was in default of acceptance. Furthermore, he would be obliged to to re-employ workers. This is actually a fiasco for any employer, because they want to avoid this at all costs. And after all, it wouldn't reflect well on the employer if they had issued a demonstrably invalid termination.

Interests of employees upon termination

From an employer's perspective, there are enough reasons to avoid these uncertainties. The only problem is that employees don't simply terminate their employment relationships. Payment of severance pay However, it is, provided it is high enough. It goes without saying that employers won't pay any price. However, they are often willing to "buy their way out" of the employment relationship by paying a reasonable severance payment.

This is the reason why, although there is no severance pay protection in Germany, the courtrooms of labor courts are like a bazaar every day. The parties then conclude a Comparisonin which the employer undertakes to pay the agreed severance payment.

Exceptionally, severance pay protection in the event of termination

Finally, I'd like to list the exceptions when you are entitled to severance pay. Let's get started:

• Termination with severance pay offer: In the case of dismissal for operational reasons, employers can offer severance pay of 0.5 months' salary per year of employment. In this case, the employee is entitled to the severance pay if they do not file a wrongful termination suit.
• Termination of employment relationship against severance pay: In the event of a socially unfair dismissal, the employee can file a termination application in the unfair dismissal proceedings. The court can then award severance pay of up to 12 months' salary. However, this is subject to the condition that the employee cannot reasonably be expected to continue the employment relationship.
• Operational change: In the event of a restructuring, the employer and works council are obligated to conclude a social plan. This plan is intended to at least substantially mitigate the economic disadvantages faced by employees, for example, by paying severance pay for job loss.