Termination of Employment in Germany

German Employment Lawyers

Termination of Employment in Germany

German Employment Lawyers

On the one hand, the termination of an employment contract offers opportunities for employees and employers, but it can also have serious negative consequences. This is particularly the case in smaller companies where the company’s success relies heavily on the work of loyal and qualified employees. As final as the termination of employment relationships can seem, they are an important aspect of professional life. In Germany, there are also strong protections in place for employees relating to dismissal.

At Schlun & Elseven Rechtsanwälte, we offer our clients the support and representation of our German employment law team. If you would like specialised guidance according to your case’s particulars, please contact us directly using the contact form below this article.

 

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Termination of Employment Requirements

Termination is a unilateral declaration of intent to terminate the employment relationship.

Suppose there is a reason for the employee or the employer to decide against continuing the employment relationship. In that case, this declaration of intent must be expressed correctly and duly delivered to the respective other parties.

According to § 623 BGB, this means that this intent should be provided in writing. Therefore, for an effective termination, the written form of the termination is a constitutive element. This is in place to provide the employee with the highest possible degree of legal security regarding the termination of employment.

However, this also often means that the associated dismissal protection proceedings before the labour court are simplified and accelerated.

It should be noted that the written form of the termination of employment contracts means written. According to § 126a, BGB electronic signatures are not allowed. Conventionally the notice must be signed by hand. Therefore, electronic signatures, scans, photocopies, telefaxes and computer faxes, SMS, and email are not valid forms of signature.

In addition to the regular termination of the employment relationship, there are other standard termination options for which the written form must be observed. For example, when giving dismissal with a chance of altered conditions of employment, the offer of change must also be submitted in writing. Similarly, an employment termination agreement must also be in writing.

It is essential to consider that those settlement agreements are not a termination within the meaning of § 623 BGB but rather a prerequisite for termination. The written form requirement under § 623 BGB does not apply to settlement agreements.

With ordinary termination, there is no requirement to provide a reason behind the decision. This requirement is, of course, considering that notice periods and other legal requirements are observed. Explicitly excluded from this by law are the following:

Deviations may also be stipulated in the employment contract or qua, collective bargaining agreement, or work agreement or may be the case if the Dismissal Protection Act (Kündigungsschutzgesetz – KSchG) applies. Whether failure to state reasons in these cases leads to the invalidity of the termination or the accrual claims for damages requires a precise legal assessment. Make sure to contact a legal professional to assess your situation and determine the strength of your case.

In the case of extraordinary terminations, the party giving notice of termination must immediately inform the other party of the reason for termination upon request (§ 626 para. 2 p. 3 BGB). If this is not complied with, claims for damages may also be considered here.

The Notice of Termination of Employment

The notice of termination is deemed to have been received if it has come into the recipient’s sphere of control in such a way that it can be expected under ordinary circumstances that it will be known (§ 130, (1) Sentence 1, BGB). In other words, it is reasonable that the recipient will have received the termination notice.

As a rule, the termination should take place on a specific date. The applicable notice periods must be observed to achieve this deadline. If termination is not given in due time, the possibility remains to bring about effectiveness at the “next possible date” without the termination letter becoming generally ineffective.

It is important to remember that there should be no grounds for invalidity of the termination of employment. It is usually not the case that a person will be denied a termination on these grounds, but they need to be considered. The general reasons for invalidity include:

The breaches of the above-listed provisions can be solid grounds for legal action, primarily when a dismissal has been based on discrimination or the violation of fundamental rights. Should your termination of employment be linked to any of these grounds, do not hesitate to contact a legal professional.

Legal Advice on the Protection Against Dismissal Act