After a dismissal, the employment relationship almost never ends from one day to the next. Both employers and employees must observe the notice period. We explain when which notice period applies and what influence your length of service has on it.
1. Which notice periods apply in German labor law?
If you or your employer wish to terminate the relationship, it must first be calculated at what point in time you can end the employment. In principle, the employment contract cannot end from one day to the next. The amount of time between the notice of termination and your last working day is determined by the applicable notice period.
The notice period is intended to give the contracting parties the opportunity to prepare for the termination of the employment relationship. The employer is given the chance to compensate for the vacant position, and the employee can look for a new job.
If the parties have not agreed otherwise, the statutory notice periods apply. The same applies if the employment contract refers to the statutory regulations or contains invalid agreements. However, different periods are often established in individual contracts or collective agreements. These can then take precedence over the statutory ones.
2. What are statutory notice periods?
If employment and collective agreements are silent on the duration of the notice period, the statutory notice periods apply. The same applies if the contractually agreed periods are invalid (which happens quite often; in particular, the employment contract may only shorten the notice period under very limited circumstances, see below). The statutory notice periods are therefore subordinate to contractually determined periods.
During the probationary period, which may not last longer than six months, the employer can dismiss you on any given day with a notice period of at least two weeks.
Important: You only undergo a probationary period if your employment contract provides for one. If you have not agreed on a probationary period, the standard notice periods apply from the first day.
The basic notice period, on the other hand, is four weeks. During the first two years, the employment relationship can be terminated with a notice period of four weeks to the 15th of a month or to the end of the month. But be careful: four weeks are 28 days and not one month.
Example: In months with 30 days, the notice of termination must therefore reach the recipient either on the 17th of the previous month or on the 2nd of the current month. In 31-day months, on the 18th or the 3rd of the month.
This four-week notice period applies to the employer only during the first two years of your length of service. Subsequently, the periods are extended according to the table in the next section.
For you as an employee, the four-week notice period (after the agreed probationary period) applies throughout your entire employment relationship – unless the employment or collective agreement provides otherwise.
3. Length of service table
The legislator provides special protection for loyal, typically older employees by granting them extended notice periods as their length of service increases. These generally apply only to termination by the employer. However, many employment contracts synchronize both periods, so that the notice period for you as an employee also continues to extend with increasing length of service.
Length of service | Notice period |
0 to 6 months (probationary period) | 2 weeks to any given day |
7 months up to 2 years | 4 weeks to the 15th or end of the month |
From 2 years | 1 month to the end of the month |
From 5 years | 2 months to the end of the month |
From 8 years | 3 months to the end of the month |
From 10 years | 4 months to the end of the month |
From 12 years | 5 months to the end of the month |
From 15 years | 6 months to the end of the month |
From 20 years | 7 months to the end of the month |
Note: If insolvency proceedings have been opened regarding your employer, the notice period for the insolvency administration is a maximum of three months.
4. The notice period in the employment contract
In the employment contract, the parties can deviate from the statutory notice periods through individual agreements. This is often the case! As soon as your employment contract provides for other periods, these agreements generally take precedence. However, the contracting parties are not completely free in designing the notice period. The law sets limits here. If these are exceeded, the statutory periods apply again.
An extension of the statutory notice period is generally possible. However, the notice period for you as an employee may never be longer than for the employer. There is no written upper limit for the period. However, a particularly long period could restrict your professional freedom of movement too much. Such an agreement could therefore potentially be invalid. However, this is only the case under special circumstances. In any case, the agreed period must far exceed the statutory one. The Federal Labor Court assumed this, for example, in the case of a three-year notice period (6 AZR 158/16).
A shorter notice period for dismissals by the employer than the statutory one is inadmissible. If the agreed period is shorter than the statutory period, the statutory (i.e., longer) notice period counts according to the favorability principle. A reduction via employment contract is only possible in two cases:
- Dismissal of temporary help: Only towards them can the employer shorten the notice period at will, provided they are not employed for longer than three months.
- Companies that employ no more than 20 employees may agree on a notice period of four weeks to any given day.
Further reductions are only possible in collective agreements.
The termination dates regulated by law – the fifteenth or, after two years of employment, the end of the month – are also mandatory and non-negotiable. The contracting parties can only specify fewer termination dates per year; e.g., allow termination only at the end of a quarter. On this point, exceptions are only made for small companies and temporary help (see above).
5. Notice periods in collective agreements
If a collective agreement applies to the employment relationship, this also takes precedence over statutory regulations. In collective agreements, more extensive changes to the notice period are possible than in the employment contract: the basic period, the extended periods, and also the periods during the probationary period can be shortened or extended at will.
If the collective agreement and the employment contract contradict each other regarding the notice period, the period that is more favorable for the employee counts. To ensure that the dismissed person can react in time to the consequences of the dismissal, longer periods are generally better for them.
Even if the parties are not organized under a collective agreement, the regulations of the collective agreement can still be binding if
- the company is at least within the scope of the collective agreement and the employment contract refers to the collective agreement; or
- the Federal Ministry for Economic Affairs and Labor declares the corresponding collective agreement to be generally binding.
6. Notice period for resignation by the employee
The statutory notice period for resignation by the employee is less complicated. During the probationary period, the employment contract can be terminated (as by the employer) with a notice period of two weeks to any given day. Thereafter, a notice period of four weeks to the 15th of the month or to the end of the month applies.
However, here too: agreements in the employment or collective agreement take precedence. However, no longer notice period may be agreed for termination by you as an employee than for termination by your employer.
7. What are the disadvantages of an incorrectly calculated notice period?
In practice, it often happens that the employer specifies a termination date in the dismissal letter that is too short.
Example: The dismissal letter states that you are being “dismissed as of Oct 31.” However, your notice period runs until Nov 30.
However, even with an incorrectly calculated period, the dismissal itself remains effective. It is then interpreted such that the dismissal shall apply to the next permissible date. There are only a few exceptions where the dismissal is indeed invalid. The labor courts have assumed such cases where the employer was off by entire years when stating the exit date.
Should the employment relationship actually be terminated with too short a notice period, there is a risk for you of a blocking and suspension period for unemployment benefit I (Arbeitslosengeld I). You must then expect to receive unemployment benefit I with a delay and less in total. I therefore recommend seeking the advice of a lawyer for labor law. Often, the right path is to have your dismissal clarified in court. This way, you often avoid a blocking period and can negotiate better conditions (especially severance pay).
8. Conclusion
- In addition to the statutory notice periods, the contracting parties can specify different periods in employment and collective agreements. These notice periods generally take precedence.
- However, if nothing else is (effectively) agreed, the statutory notice periods apply. Employees and employers can terminate with a notice period of four weeks to the 15th of the month or to the end of the month. With increasing length of service, the notice period for the employer extends.
- A dismissal with an incorrectly calculated notice period is usually still effective. For the employee, there is a risk of a blocking and suspension period for unemployment benefit I. Within the scope of my consultation, I usually recommend taking legal action against the dismissal.