A summary dismissal fails more often in labor court due to the clock ticking than the accusation itself. The employer must issue the dismissal within two weeks of the employee becoming aware of the decisive facts. This deadline is a true preclusive period. It cannot be extended, contractually waived, or salvaged even if the accusation is true. An employer who spends weeks conducting internal investigations, then involves the works council, and finally issues a dismissal, will lose the case despite having a valid reason.
This presents you with an unfamiliar perspective. The first question is not whether the accusation is true, but rather when and who within the company learned of it. Two further questions arise: Would a warning have been a possible, less severe measure, and did the employer comply with the company's right to be consulted? Most cases hinge on these three points, not on your justification.
We are Smart Employment Law, a law firm with two offices in Hamburg specializing exclusively in employment law. We advise and represent employees, employers, and works councils. Because we also prepare dismissals, we know the necessary steps within a company and where mistakes regularly occur.
Time is of the essence. You have three weeks to file an unfair dismissal claim, and at the same time, your salary has stopped. Therefore, the order of the steps is crucial.
The most important information at a glance
- Two-week deadline: The employer must issue the termination notice within two weeks of becoming aware of the relevant facts. If they fail to do so, the termination without notice is invalid.
- Two stages: The reason must be abstractly valid, and the balancing of interests in the individual case must be to your disadvantage. Both conditions must be met.
- Warning letter: In cases of controllable behavior, a warning is usually necessary first. Without one, dismissal is often disproportionate.
- Reinterpretation: If the summary dismissal fails, it may, under certain circumstances, be considered a regular dismissal. Therefore, the lawsuit should also be directed against this aspect.
- Three weeks: Your deadline for filing a lawsuit is three weeks from receipt of the complaint, regardless of company size and length of employment.
- Money: If successful, the employer owes wages for the entire period of default of acceptance. The employment agency often imposes a waiting period in cases of summary dismissal.
When a valid reason exists
An extraordinary termination requires that the employer cannot reasonably be expected to continue the employment relationship, even until the end of the regular notice period. The courts examine this in two steps. First, whether the facts of the case are generally suitable, i.e., whether such conduct can even justify a dismissal without notice. Then, whether the balancing of interests in the specific case weighs against you.
More factors are considered in the assessment than many expect. These include length of service, a previously unblemished record, the degree of culpability, the consequences for the company, the risk of recurrence, and your personal circumstances, such as maintenance obligations or age. A long and unblemished employment history significantly works in your favor. Therefore, dismissals after twenty years of service often fail to survive the same accusation that would have been valid in the first year.
The employer is not required to state the reason for dismissal in the letter. Its absence does not invalidate the dismissal. However, you can request the reason, and we advise you to do so, as this commits the employer to a specific course of action. We have the details in the article. Does the reason for termination have to be stated in the termination letter? depicted.
The two-week deadline: the employer's most frequent mistake
This deadline is the most effective starting point, and it is almost never checked by those affected because it concerns the internal process at the employer.
When the deadline begins
The time limit begins to run from the moment the person entitled to terminate the employment has sufficiently reliable and complete knowledge of the facts to reasonably make a decision regarding termination. This includes circumstances that argue against termination. Mere suspicion does not yet trigger the time limit, while confirmed knowledge starts it immediately. In cases of ongoing breaches of duty, the time limit begins with the last incident that triggers the decision to terminate.
Who is entitled to terminate the contract?
What matters is not when your direct supervisor found out, but when the department authorized to issue a dismissal was informed. In a limited liability company (GmbH), this is the management; in a stock corporation (AG), the board of directors; and in larger companies, often the human resources department with the appropriate authorization. If the incident was handled by a team leader for weeks and only reported upwards belatedly, this can be attributed to the employer if the reporting channels were intentionally or organizationally delayed.
Investigations and hearing
The employer is entitled to investigate the matter, and prompt investigations suspend the time limit. According to case law, "prompt" means an investigation without undue delay; approximately one week is generally considered reasonable for a hearing. Those who wait passively, ignore the matter, or repeatedly postpone a hearing cannot invoke the suspension of the time limit. It is also important to note that the dismissal notice must not only be issued but also received by you within the two-week period.
Therefore, note down everything you know about the timeline: the date of the incident, the date of the initial conversation, who participated, which internal departments were informed, when a hearing took place, and when the dismissal was received. This chronology is often more valuable than any substantive justification.
Warning as a milder measure
Summary dismissal is the most severe reaction and therefore only permissible if no less severe measure suffices. Less severe measures include transfer, a warning, and ordinary dismissal. In the case of controllable behavior, i.e., behavior that you can change after a warning, the Warning letter in employment law Generally, it takes precedence. Like a dismissal for misconduct We explain how it needs to be structured in the corresponding guide.
A warning is only unnecessary in cases of serious breaches of duty whose illegality is obvious and where it is clear that the employer can no longer be expected to cooperate. Classic examples include criminal offenses against the employer, physical assaults, and persistent, deliberate refusal to work. In all other cases, it is worth asking why a warning was not issued. If an older warning exists, it should be examined whether it was valid and whether it concerned the same set of duties. A warning for lateness does not justify dismissal for insult.
Cases in which summary dismissals regularly fail
Our experience has shown patterns where the chances of success are above average.
- Trivialities: Items of low value or small amounts of money, especially when contrasted with a long history of unblemished service.
- Allegations of working hours without evidence: The employer claims manipulation, but cannot prove it for specific days.
- Sick leave notification: The illness itself is not a breach of duty. Only violations of reporting and documentation obligations are relevant, and these usually require a warning.
- A unique derailment: An ill-considered remark made during an argument, especially if it was provoked and there is no other evidence.
- Conflict instead of accusation: The dismissal follows shortly after a complaint, a request for overtime, or a sick note. In such cases, an unlawful disciplinary measure is likely.
In practice, this doesn't mean you're right. It means that in these situations, a review is almost always worthwhile because your negotiating position is better than your initial impression.
Dismissal based on suspicion: Your hearing is mandatory
If an employer terminates an employee not because of a proven offense, but because of a strong suspicion, additional requirements apply. The suspicion must be based on objective facts and be urgent. Above all, the employer must first hear your side of the story and give you the opportunity to respond to the allegations. If this hearing is omitted, the termination based on suspicion is invalid.
This has an important consequence for you regarding the course of such a meeting. You are not obligated to make any spontaneous statements if the allegations are only presented to you during the hearing. Request a written summary and a reasonable deadline for your response, and have someone accompany you. Everything you say during the hearing can be used as evidence later in the trial.
Formal errors and participation rights
Besides the notice period and proportionality, there are formal points of contention. The termination must be declared in writing with a handwritten signature. Termination by email, messenger, or fax is invalid. The signatory must be authorized to issue the termination notice, and if there is any doubt about their authorization, you can challenge it. Further information can be found in the guide on [topic missing in original text]. Protection against dismissal in employment relationships.
If a works council exists, it must be consulted before any dismissal; in the case of extraordinary dismissal, this consultation must take place within three days. A dismissal issued without proper consultation is invalid. For works council members, their consent is even required. If a severe disability is recognized or applied for, the Inclusion Office must also give its consent; further details can be obtained from [contact information missing in original text]. Protection against dismissal for severely disabled employees. Official approval is also required during pregnancy and parental leave.
Resignation: If you wish to resign without notice
The regulation applies in both directions. You too can terminate the employment relationship without notice if continuing the employment is unreasonable for you. This could include, for example, significant wage arrears over a prolonged period, persistent harassment or threats, serious violations of occupational safety regulations, or being instructed to act unlawfully.
Two points are crucial here. First, the two-week deadline also applies to you, calculated from the moment you become aware of the reason. Second, you generally have to issue a formal warning to your employer beforehand, meaning you must request a remedy in writing and set a deadline. Without this preliminary step, your own summary dismissal will usually fail, and the employment agency will then also impose a waiting period for unemployment benefits. In cases of wage arrears, the right to withhold payment is often the better first step because it creates pressure without terminating the employment relationship.
Money: Wages, default of acceptance and unemployment benefits
With a summary dismissal, the employer immediately stops payments. This is the real hardship, as the legal proceedings can take weeks or even months. If the labor court finds the dismissal invalid, the employment relationship is considered never to have ended, and the employer owes wages for the entire period as compensation for default of acceptance.
There is one restriction that surprises many: you must actively seek other suitable employment during this period. The employer can request information about job placement suggestions from the employment agency, and anyone demonstrably failing to make an effort risks a reduction in their back payment. Therefore, documenting job applications is not a minor detail, but rather an essential part of securing your entitlement.
Register as unemployed with the employment agency immediately and apply for unemployment benefits, even if you are filing a lawsuit. In cases of summary dismissal due to breach of contract, a twelve-week waiting period is often imposed because the agency assumes the unemployment is self-inflicted. In this case, file an objection and point out the ongoing proceedings. If the case ends in a settlement in which the reason for dismissal is not confirmed, the waiting period can often still be avoided.
Three weeks: Your deadline
You must file a lawsuit against a summary dismissal within three weeks of receiving the notice; otherwise, it is considered valid. This deadline also applies to small businesses and during the probationary period, as it covers all grounds for invalidity, not just protection against dismissal under the German Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz). We describe the procedure in more detail below. Unfair dismissal claim before the labor court.
One point regarding the objective: The proceedings are often concluded with a settlement. Typically, this involves an agreement that the employment relationship will end at a later date for operational reasons, combined with back pay, a formal reference letter, and possibly a [further explanation/benefit]. Severance pay upon termination. Anyone who has an offer for a Have your termination agreement reviewed If you receive it, you should have it checked before signing, because this usually also decides the waiting period issue.
What you should do in the first few days
- Record access: Note the date and time, keep the envelope, and enter the deadline in the calendar.
- Do not sign anything: No termination agreement, no settlement receipt, no confirmation of allegations.
- Create a chronology: Who knew what and when, what conversations took place, who was present.
- Request reason for termination: Request it in writing so that the employer commits to a decision.
- Clarify work equipment: Document the return of the laptop, keys and ID; secure your own documents beforehand.
- Report to the agency: Register as unemployed, submit a benefit application, document job applications.
If you bring these points to your initial consultation, it will significantly shorten the assessment. We have an overview of them below. how employees can support their lawyer compiled.
Frequently asked questions about termination without notice
Get it checked now, the deadline is approaching.
In the case of a summary dismissal, the first week is crucial for determining your negotiating position. We will promptly review whether the two-week notice period was observed, whether a warning would have been necessary, and which employee rights have been violated. If you have received a notice of termination, Describe your case to us. The initial consultation with a brief assessment is free of charge, and we will get back to you promptly.
author
Raphael Lugowski
Raphael Lugowski is a specialist lawyer for employment law and has been advising employees, works councils, and staff councils in all areas of individual and collective employment law since 2016. His areas of expertise include: protection against dismissal, termination agreements, works constitution law, and employment law at the intersection of digitalization and AI.
Go to author profile →