Key Points at a Glance
In Germany, an employer may only dismiss an employee if there is a legally recognized ground. Under the Protection Against Dismissal Act, personal, conduct-related, or operational grounds may apply. Summary dismissal is only permitted if there is a particularly serious ground that makes continuation of the employment relationship unreasonable. If the dismissal is not proper or socially justified, it may be invalid, and the employee then has the option to file an unfair dismissal claim.
1. Ordinary Dismissal
For an ordinary dismissal with notice, your employer generally requires grounds for dismissal. It is easier for the employer only if the employment relationship is exceptionally not covered by the Protection Against Dismissal Act (KSchG).
This is only the case if:
- ten or fewer (full-time) employees are employed in the establishment.
- or the employment relationship has not existed for longer than six months (waiting or probationary period).
In all other cases, you enjoy the relatively high protection of the Protection Against Dismissal Act. This stipulates that an ordinary dismissal is only lawful if there are personal, operational, or conduct-related grounds for dismissal.
In addition, the employer must comply with certain formal requirements. These include, in particular, consultation with the works council and a personally signed dismissal letter that must be delivered to you. Here, consultation with an employment law attorney can be crucial to review the lawfulness of the dismissal.
Regarding the grounds for dismissal:
a. Personal Dismissal
A personal dismissal is possible if you can no longer perform the contractually owed work due to personal circumstances. An employment law attorney can review whether all requirements for such a dismissal are met. This often involves circumstances that you cannot directly influence. The classic case is dismissal due to illness.
Other grounds include, for example:
- imprisonment
- revocation of driving license if you work as a driver
- revocation of professional license (e.g., of a physician)
Particularly for dismissal due to illness, case law sets high hurdles. Dismissal due to illness is only lawful if:
1. A Negative Health Prognosis Exists
It must be expected that you will not be able to perform the work as owed in the future due to your illness.
For the prognosis, the employer may, at least in principle, rely on previous days of absence. The rule of thumb is six weeks per calendar year. If an employee has already been unable to work for a total of six weeks per year in recent years with the same medical condition, this may tend to indicate that the employer must expect similar absences in the future.
Example: A has severe, incurable migraines and was therefore on sick leave for more than seven weeks with interruptions in each of the last two years of employment. His employer can therefore expect that A will frequently be absent in the future as well. For this reason, he dismisses him on personal grounds.
But note: Past absences are only an indication! If you can prove that you will be absent less frequently in the future, your previous absences are irrelevant. This refers, for example, to the case where your doctor certifies the recovery from a chronic illness that was the cause of the absences.
2. Economic Interests of the Employer Prevail
Dismissal due to illness is only possible if the employer’s operational interests would otherwise be significantly impaired. In particular, they must outweigh the employee’s legitimate interest in continued employment. This depends, among other things, on the duration of your service with the company, maintenance obligations, costs to the employer due to your absences, and many other circumstances. Frequent short-term illnesses that repeatedly trigger entitlement to continued payment of wages weigh more heavily than a long-term absence that “costs the employer nothing more” after the six weeks of continued payment of wages have expired.
3. No Less Severe Measure Is Available
Dismissal due to illness is only considered as a last resort. First, it must be examined whether you can continue to be employed in another position where your physical limitation is not a hindrance.
Example: A roofer may, after a herniated disc, be deployed in a vacant position in order planning.
For this purpose, you “must” be offered workplace integration management (BEM) beforehand. In this context, you discuss with the employer which positions are suitable for you and how you can be reintegrated into the company after a long or frequent illness. If the employer does not invite you to BEM, the dismissal is not automatically unlawful. However, the employer faces stricter evidentiary rules. Only if the illness is manifestly incompatible with any employment in the company can the employer dispense with the BEM offer without restrictions.
4. No Special Protection Against Dismissal Exists
Beyond a certain degree, a prolonged illness may also be considered a severe disability. In that case, employers may not dismiss without official authorization.
b. Operational Dismissal
If your employer cannot continue to employ you for economic reasons, he will issue an operational dismissal. An employment law attorney can help review compliance with the strict requirements:
1. Urgent Operational Requirements
There must be urgent operational requirements that make continued employment impossible. These may involve both external circumstances (e.g., decline in sales) and internal changes (e.g., rationalization measures, downsizing).
2. No Possibility of Continued Employment
Your employer is obliged to deploy you primarily in comparable, vacant positions. This also applies if reasonable retraining would be necessary for this purpose. Only if no such possibility of continued employment exists is the dismissal valid.
Note: The position is only considered “vacant” if it became available during the notice period. Vacant positions that arise after the end of the notice period are not taken into account.
3. Proper Social Selection
When dismissing employees, employers must also take social considerations into account. They must primarily dismiss those employees who can best cope with the dismissal.
The following must be considered:
- duration of service with the company (loyalty to the company should be rewarded)
- severe disabilities
- maintenance obligations (e.g., toward children)
- age (the higher, the more deserving of protection)
Within a comparison group, priority is therefore given to dismissing those who are young, healthy, and childless. However, there are ways to retain particularly young talent in the company.
4. Numerous Additional Requirements
Operational dismissal in particular is especially prone to errors. The employer must observe numerous additional pitfalls (possibly a mass redundancy notification). This applies especially to extensive job cuts. Therefore, legal review is particularly worthwhile here.
c. Conduct-Related Dismissal
If you violate contractual obligations, you may be dismissed on conduct-related grounds under certain circumstances. Here too, the advice of an employment law attorney is valuable to assess your options.
Recognized grounds include, for example:
- Deficient work performance: unpunctuality, refusal to work, faulty work, work that is too slow, negative hours.
- Loss of trust: physical altercations with superiors or colleagues, theft at the workplace, time fraud, sexual harassment.
- Disruption of operational order: bullying, insults, alcohol/drug consumption during working hours, unauthorized leave, failure to provide sick note.
But: Not every breach of duty entitles your employer to dismiss you immediately. The first violations generally only justify a warning. It depends on the severity of the breach of duty.
Examples:
- Unpunctuality of less than 30 minutes does not constitute a particularly serious breach of duty. Before your employer resorts to dismissal here, he must issue several warnings. Otherwise, the dismissal is subject to legal challenge.
- In contrast, criminal offenses against the employer usually constitute immediate grounds for dismissal. In cases of sexual harassment or theft (beyond trivial matters), your employer does not have to issue a prior warning in most cases.
Note: The warning must relate to similar breaches of duty.
Example: A has already been warned four times for unpunctuality. Later in the week, he moderately insults a colleague. His employer may not dismiss him directly for this, but must first issue a warning for the insult as well.
2. Extraordinary Summary Dismissal
After dismissal, the notice period generally runs first. During this time, you remain employed. In special exceptional cases, summary dismissal may be justified. An employment law attorney can assess whether the requirements for such a dismissal are met. There must be serious grounds that make continuation of the employment relationship unreasonable.
These grounds can generally only lie in the person of the employee. External circumstances, such as insolvency, do not normally justify summary dismissal.
Recognized grounds are:
- commission of a criminal offense to the detriment of the employer
- serious bullying
- physical assaults at the workplace
- fraud against the company or customers
But: An exception exists if an employee cannot be dismissed ordinarily due to collective bargaining provisions. Then there are situations in which you can also be dismissed extraordinarily without your own breach of duty; for example, if the establishment is closed down and the employer therefore cannot possibly continue to employ you. However, a social notice period is then granted, which usually corresponds to the ordinary notice period.
The employer must issue the extraordinary dismissal within two weeks after becoming aware of the grounds. Later, at most a dismissal with notice may still be considered.
3. What Happens in the Event of an Invalid Dismissal?
If the employer does not comply with the statutory protection against dismissal provisions, the dismissal is invalid. An employment law attorney can support and advise you in this case on how to proceed:
1. Engage an Attorney
An experienced employment law attorney can assess whether the dismissal is truly unlawful. Before taking further steps, you should therefore seek advice.
2. File an Unfair Dismissal Claim
With the help of your employment law attorney, the dismissal can then be challenged in court. According to Section 4 sentence 1 KSchG, you have only three weeks from receipt of the dismissal to do so. Time is therefore of the essence!
If the labor court assesses your dismissal as invalid, the original employment relationship was never terminated. As an employee, you can then:
3. Claim Back Pay
Legal proceedings regarding dismissal can extend over several weeks and months, during which the dismissed employee receives no salary. If he wins the proceedings, he must therefore be paid retroactively for the duration of the proceedings.
Tip: As a rule, the employer is then also in default. Without the unlawful dismissal, payment would actually have been made earlier. The employee is therefore entitled to a claim for back payment plus default interest.
4. Negotiate a Severance Payment
Many unfair dismissal claims do not even lead to a judgment. The parties often agree beforehand on a severance payment for the employee. In return, the employee drops the claim and thus accepts the dismissal.
4. Conclusion
- The Protection Against Dismissal Act stipulates that an ordinary dismissal is only lawful if there are personal, operational, or conduct-related grounds for dismissal.
- A personal dismissal is possible if employees can no longer perform the owed work due to personal circumstances. Most personal dismissals occur due to the employee’s illness.
- If urgent operational requirements make continued employment of the employee impossible, the employee may be dismissed on operational grounds. Priority must be given to dismissing those who can best cope with the dismissal (social selection).
- If employees violate contractual obligations, they may be dismissed on conduct-related grounds. However, they must usually be warned beforehand.
- Summary dismissal is only considered if serious grounds in the person of the employee make continuation of the employment relationship unreasonable.
- The employee can challenge an unlawful dismissal by means of an unfair dismissal claim. Before doing so, an employment law attorney should be consulted.
The Protection Against Dismissal Act protects employees from unlawful dismissals. If you have questions or uncertainties, consultation with an employment law attorney is an important step to safeguard your rights.
5. FAQ
The KSchG typically applies if the establishment employs more than 10 employees and the employment relationship has existed for longer than six months. In such cases, a dismissal must be socially justified.
It exists when the employee violates contractual obligations, such as repeated refusal to work, significant poor performance, loss of trust through, for example, theft or insults. Before such a dismissal, a warning is generally required.
If there is an important ground that makes continuation of the employment relationship unreasonable for the employer, such as a criminal act by the employee. In addition, the dismissal must be issued within two weeks after becoming aware of the important ground.
Yes, for example, by filing an unfair dismissal claim. The employer must present and prove his grounds in the proceedings. If the dismissal is declared invalid, the employment relationship remains in place and claims for back payment may arise.