Termination for personal reasons – what you need to know

All information on dismissal for personal reasons – Here you will find answers to your questions

Have you received a termination notice and know (or suspect) that personal reasons are the trigger? It is only too understandable that your world is now turned upside down. That you are worried and uncertain. In this difficult time, you first want to know whether the employer is allowed to terminate you just like that. And of course, you are interested in the question of whether the employer will actually get away with the personal termination. In addition to the possible loss of your job, you may also want to know whether you will at least receive severance pay. Employment law attorney in Hamburg and expert for terminations, Termination agreements and severance pay negotiations, I am available to answer your questions.

This guide to dismissal for personal reasons provides valuable information. After reading this article, you will know

• the validity of your dismissal for personal reasons,
• what you can do against the termination,
• what options you have due to the termination and
• whether you can expect severance pay.

Based on the advice in this article, you'll be able to assess exactly how to handle dismissal for personal reasons. I recommend that you read the core of the article—the practical advice on your options.

Your protection against dismissal for personal reasons

Yes, even reasons within the employee's sphere of influence can socially justify a dismissal. A regular dismissal for personal reasons is socially justified if an employee can no longer fully or partially perform the work agreed upon in the employment contract due to personal reasons.

No fault required

Any fault is not relevant in this case. The personal circumstances and characteristics of the employee are the sole determining factor. The assessment of the employee's suitability to perform the work is based on the Time of receipt of the notice of termination decisive.
Federal Labor Court, judgment of 10 April 2014 – 2 AZR 812/12

In principle, no prior warning is necessary

Dismissal for personal reasons differs fundamentally from dismissal for conduct. While in a dismissal for conduct, the employee's breach of contract is the trigger for the dismissal, in a dismissal for personal reasons, the employee has not committed any offense. In the one case, the behavior is controllable; in the other, the course of events is precisely beyond the employee's control. This leads to an important insight:

In the case of dismissal for personal reasons, no prior warning is generally required.

This makes sense when you consider the meaning and purpose of Disciplinary warning This is because the warning is intended to discipline the employee to comply with the contract. This logically presupposes that the behavior is controllable. In the case of personal reasons, however, the reasons for the breach of contract lie in the employee's personal sphere, which they cannot influence. For this reason, the warning cannot achieve its inherent goal of disciplining the employee to fulfill the contract. To put it bluntly:

If the reason is personal, the employee wants to, but cannot. If the reason is behavioral, the employee can, but does not want to.

Exception: warning still required

Nevertheless, it can Exceptional cases There are circumstances in which a warning is appropriate even in the case of dismissal for personal reasons. This is the case when there are deficiencies in the professional qualifications of employees that can be remedied quickly.

Termination for personal reasons – effectiveness

The courts examine the validity of ordinary dismissal for personal reasons in three steps.

Forecast: Employee not suitable

In the first step, the case law asks whether at the time of termination no suitability to perform the work or a significant impairment was present.

The lack of suitability or impairment can lead to social justification for ordinary dismissal for personal reasons if it is not expected that the employee will be able to perform his or her duties immediately.

This results in: disruptions in the employment relationship

The lack of suitability must have led to specific disruptions in the employment relationship. This means that the lack of or impaired ability or suitability must have had an impact.

These disruptions must still be ongoing at the time of termination, and a prognosis must show that they will continue to occur in the future. However, if the disruptions can be avoided through relocation or transfer, termination for personal reasons is not an option.

Balancing of interests to the detriment of the employee

Finally, a balancing of interests must show that the employer no longer has to accept the disruptions in the employment relationship that have occurred or are still to be expected due to the personal reasons.

From the perspective of a reasonable employer, dismissal for personal reasons must appear justifiable and appropriate.

In practice, the most common case of dismissal for personal reasons is dismissal due to illness.

Dismissal for personal reasons – lawsuit

Based on the Federal Labor Court's examination procedures, you can see that a dismissal for personal reasons is not a given for an employer. There may be cases where the legal situation is clear, for example, if the license required to practice the profession is missing. However, if the restrictions are of a minor or moderate nature, it will come down to a balancing of interests. This raises the question of whether the employer must still tolerate any disruptions to the employment relationship.

Your options in the event of dismissal for personal reasons

However, that's just the end of the legal process: the court's decision. You, however, are just at the beginning. Either you've already received a dismissal for misconduct, or one is imminent. How can you take action against the terminationThe only way to get rid of the termination is to file an appeal. Dismissal protection suitThis is important because an important deadline begins after receiving notice of termination.

The alternative to filing a wrongful termination suit is not to file a suit. Then the aforementioned three-week deadline expires, and the employment relationship ends. On the other hand, you don't have to pursue legal action and there are no costs involved. However, you also don't know whether you might have lost your salary and severance pay.

Your decision is ultimately a Weighing up the chances in the processIf your chances are good, then it makes economic sense to file a lawsuit. If the chances are poor, however, you're better off saving yourself the stress and expense. There is one exception to this: In the case of legal expenses insurance, it's almost always worth taking legal action against a cancellation. Economic viability is irrelevant here.

The costs of a wrongful dismissal claim

When it comes to costs, you must first think about the Legal fees Think about it. In employment law, the parties always bear these costs themselves. If you don't have legal expenses insurance, you must include legal fees in your overall assessment. Because hiring a lawyer only makes sense if you would ultimately be financially more advantageous than without one.

However, you don't need a lawyer to file a wrongful termination suit. You can also file a claim free of charge with the legal aid office of your local labor court. However, due to the lack of in-depth legal knowledge and negotiation experience, this could cost you more than the lawyer himself. If you lose the case, you'll also incur court fees.

In summary, I recommend that you seek a free initial assessment from a lawyer. They will first listen to your case and briefly outline the opportunities and risks of filing a lawsuit. They will also advise you on whether filing a lawsuit makes economic sense – also taking into account their costs.

Termination for personal reasons – severance pay

As an attentive reader of the articles on this site, you already know that you have no legal right to severance pay upon termination. The same applies to terminations for personal reasons. Yet employers still pay severance pay even in cases of termination for personal reasons, in order to legally terminate the employment relationship. Why is this?

Employer motivation

The employer's motivation is clear: He wants to terminate the employment relationship. He no longer wants to tolerate the alleged operational disruptions. Therefore, he has issued a dismissal for personal reasons. He presumably sought legal advice beforehand regarding the likely effectiveness of the dismissal. Or maybe not—that would be his problem. In any case, the employer believes he has a personal reason for the dismissal.

But whether he actually has this reason, will only become clear in the dismissal protection proceedings. There, the employer must inform the court Disclose the reason for terminationThe court listens carefully to the employer, notes all essential reasons, and then often says:

In my opinion, the termination is not valid.

But that's a bit meager for a termination.

The employer, completely disillusioned, makes eye contact with his lawyer. The lawyer speaks again, trying in vain to reverse the court's statements. It's clear to the lawyer: The employer will get his termination, but it will cost something.

When the employer will pay severance pay

The above typical course of a negotiation illustrates: The Employer has only an incentive to pay severance pay, if his resignation is unlikely to succeed. He wants to terminate his employment, but his resignation may be invalid. In that case, the employment relationship would continue, and the employer would have to pay back wages.

It is understandable that this does not serve the interests of an employer. Therefore, in cases of litigation risks, the employer will generally be willing to create an incentive for the employee to terminate the employment. This can be achieved by offering severance pay or an extended notice period. In such cases, a legally secure termination by settlement is the most effective solution. Employer's goalAnd it will cost him a lot economically.

However, there are also situations in which the employer valid reason for termination Then, after the employer's argument, the court will say that the termination "looks good." In this case, the employer must assume that the termination is valid. And, accordingly, they will win the unfair dismissal case. As an employer, would you pay severance pay in such a situation? I wouldn't.

Summary of the severance payment

So you can see that in the case of an uncertain termination, severance pay is usually paid, even though there is no entitlement to it. However, the more certain the termination, the lower the chances of receiving severance pay.