Extraordinary Termination in Germany

German Employment Lawyers

Extraordinary Termination in Germany

German Employment Lawyers

As is well known, German employment law grants employees extensive protection against dismissal. The employer needs a vital reason to terminate the employment relationship immediately (i.e., without following notice periods). This must make the continuation of the employment relationship appear unreasonable for the employer. However, if the employee believes they have been wrongfully dismissed, they can take legal action against their employer. Therefore, a prudent approach to extraordinary dismissal is crucial.

Schlun & Elseven Rechtsanwälte offers competent and committed legal assistance to provide our clients with the support they need. Our specialist lawyers for German employment law, Dr Thomas Bichat and Jens Schmidt, will be happy to explain your rights and obligations. They provide reliable support to bring legal disputes to an effective conclusion – through out-of-court settlements, litigation or in the context of an action for protection against dismissal. Please do not hesitate to contact us to benefit from our expertise.

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Extraordinary Termination under German Law

Employers can only bring about an extraordinary termination if they have an important reason. Legally speaking, this refers to the employer not being reasonably able to continue the employment relationship until the end of the usual notice period. Employees are granted strong protections under German employment law. Therefore, employers should not take such a decision lightly, or they may leave themselves open to potential unfair dismissal claims.

An “important reason” must be one that is taken seriously in this regard and is generally held to refer to operational, personal or behavioural reasons. However, it should be noted that the termination reasons do not need to be explicitly stated in the notice of termination.

Operational reasons refer to situations where the job position no longer exists or will not exist because of changes in operations. These cases are rare in practice. Usually, employees can be informed in advance and in line with ordinary dismissal in this situation. In insolvency cases, the administrator can give employees notice of termination, even if the notice period is shorter than it should usually be in other conditions.

Extraordinary termination for personal reasons refers to aspects of the employee’s character. An example of how this works in practice is an employee who is constantly out on sick leave and is absent to such a degree that the employer cannot reasonably be expected to keep them in their employment. Other examples may include individuals serving a prison sentence or those suffering from addictions, such as alcohol or drugs, where they have experienced a loss of control or related issues.

The most likely cause for an extraordinary termination refers to reasons relating to the individual’s conduct. Such conduct concerns breaches of the employment contract; there can be no legitimate reasons to justify the breach, and the employee must have acted at least negligently when carrying out the activities. The activities involved that permit an extraordinary termination include the following:

  • Disregarding the instructions of superiors and supervisors,
  • Breaching the rules of the company, including using company property for personal reasons despite clear rules against it,
  • Continual refusal to work,
  • Breaching rules relating to working for competitors,
  • Criminal offences against the company,
  • Criminal offences against customers or partners of the company (such as fraud, theft etc.).

Employers should note that the dismissal must be proportionate to the employee’s activity. Courts can consider the previous working relationship and its duration when determining whether it was proportionate. They may find that other sanctions would have fitted the breach of duty. Employers should consider consulting with employment lawyers in these cases.

Similarly, employees should bring their case to an employment law specialist if they believe that they were unfairly treated in the dismissal. Essentially, German law wants to determine whether the employer’s interest to immediately end the employment relationship is of greater value to the employee’s rights relating to remaining in employment. However, employees need to act quickly, as an action for protection against dismissal should be taken within a three-week period from the time of the dismissal.