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.