Notice Period According to Employment Contract & Collective Agreements
Usually notice periods in Germany are laid out in the employment contract between the contractual parties. It is worth referring back to the original contract you signed with your employer to find this information if you are not sure about them. If the contract does not outline the timeframes, the notice periods are then legislated for by statutory requirements. These requirements for notice periods are provided for by §622 BGB/German Civil Code.
Away from the employment contract and statutory requirements, collective agreements are also seen as legislative means by which notice periods are regulated. However, there are certain requirements which need to be fulfilled for collective agreements to apply in terms of your employment relationship. These requirements are:
- When both parties (the employer and employee) are bound by collective agreements, or
- Where the collective agreement has been declared universally applicable, or
- Where the collective agreement is the standard form of practice by the employer in company practice, or
- When the application of the collective agreement is part of the employment contract.
Should there be a collective agreement in place it can allow for the extension or reduction of the statutory notice period. Generally, where collective agreements apply they are there to allow the employee a longer notice period. They are seen as additional protections for the employee.
What is the Notice Period as per German Law?
The length of time involved in notice periods in relation to employers in Germany is based around how long a person has worked for their company. If a person has worked for less than six months or is still on the probation period of their working contract the notice period requirements are a lot lower than when compared to a person who has worked for twenty years or more with a company. The timeframe is generally set at a minimum of 4 weeks ending on either the end of month or on the 15th of the month based on when the termination notice was provided. What this means is that if an employer aims to dismiss an employee on Wednesday 15th of April, the employee will need to receive their notice by latest Wednesday 18th of March. If the employee receives their notice later than this date then their employment will continue on until Thursday 30th of April (the end of the month).
It is worth noting that the emphasis is on when the employee received their notice. The notice period does not begin at the point when the employer decides on dismissing the employee and it does not start when the employer decides to draft the notice letter. The notice period begins when the employee receives their letter concerning the termination of their employment. As an employer it is worth hand-delivering or having someone else within the firm hand-deliver the notice of termination to the employee to ensure that you have evidence that the employee received it.
Below listed is the time-frames regarding the notice period necessary for employers to provide to their employees:
- 0-6 months employed: notice period is 2 weeks to any day (not end of or 15th of month),
- 7+ months employed: notice period is 4 weeks to the end of (or 15th) the month,
- 2+ years employed: notice period is 1 month to the end of the month,
- 5+ years employed: notice period is 2 months to the end of the month,
- 8+ years employed: notice period is 3 months to the end of the month,
- 10+ years employed: notice period is 4 months to the end of the month,
- 12+ years employed: notice period is 5 months to the end of the month,
- 15+ years employed: notice period is 6 months to the end of the month,
- 20+ years employed: notice period is 7 months to the end of the month.
How Much Notice Does An Employee Need To Give An Employer?
It is of course not only employers who end the employment relationship. An employee can also terminate their employment and if this is the case it is worth bearing in mind how the notice period they have to provide their employer with. Employees cannot simply leave their job without providing their employer without some time to start the reorganisation necessary. The rules are different here as in accordance with statutory requirements an employee only needs to provide a minimum of 4 weeks notice – to the 15th of the month or the end of it. Subsequently, it is important for employers to ensure that the employment contract stipulates a longer notice period if they wish to have more time to find replacements, reorganise the office etc. The notice period laid out in the employment contract will supersede the minimum as provided by those in the BGB provided they do not go below the minimum requirement.
It is worth knowing that during this time the employer cannot treat the employee in a discriminatory manner. Just because the employee has handed in their notice period does not mean that the employer has free rein until the employee leaves. The employer must still continue to pay the employee’s wage and not treat them in a manner that could be deemed as discrimination.
What Exceptions Are There To These Notice Period Requirements?
Not all employees are provided with the notice periods outlined above. There are exceptions to this rule according to German law such as:
- Employees who are still in the probation period of their work – usually the first six months of their employment – do not need to be provided with the 4 week notice period. These workers are only provided with a minimum of two weeks as a notice period.
- Employees who have been employed on a short-term contract of less than three months. Within these employment contracts the employer can outline a notice period shorter than the usual four week requirement. However, if the contract is extended beyond three months they are no longer seen as short-term workers.
- Part-Time Workers: in the case of part-time workers their period of work is calculated at half the time of other workers (if they work at 20 hours per week) and at three quarters of the rate (if they work 30 hours a week.)
- Small Business: if the employer as a rule employs not more than 20 employees with the exception of those employed for their own training and the notice period does not fall short of four weeks.
- Mutual Agreement: the employer and employee mutually agree the details regarding the termination of the working contract. This mutual agreement needs to be in writing and agreed to be by both sides. It will outline the conditions of the termination and the two sides can agree on a set date by which time the employee will leave the company.
Extraordinary termination allows for an employer to dismiss an employee without the requirement for a notice period. This is strictly regulated through acts such as the German Civil Code and the Protection Against Unfair Dismissals Act (in German – Kündigungsschutzgesetz or KSchG) to ensure fairness in the process. However, the option is available to employers where an employee has behaved in a manner that permits the employer to consider such a step. Such behaviour includes:
- Where the employee has performed criminal actions,
- Where the employee has misconducted themselves in a serious manner against customers/colleagues and/or management (such misconduct includes (but is not limited to): harassment, assault, fraud, theft and abuse),
- If the employee has breached confidentiality agreements,
- If the employee does not carry out the requirements of their employment contract,
- Where an employee has feigned illness or been repeatedly late for work.
For less serious cases it is far better practice for the employer to issue formal warnings to the employee. Proceeding to dismiss someone for a minor infraction without providing warning may lead to legal difficulties for the employer. However, in the event of a serious incident, where the employer has justified reasons for considering dismissal to be the the best course of action (having taken into account other possibilities), the employer may be able to proceed with dismissing an employee without having to provide a notice period. This is an extraordinary dismissal so if as an employer you are not sure whether this action is justified make sure to obtain legal assistance regarding this issue.
What Constitutes Unfair Dismissal?
An employer needs to have a valid reason to dismiss an employee. Such valid reasons include issues regarding conduct, consistent underperformance in the workplace, the company closing folding, downsizing or restructuring and issues regarding regular or long-term illness. However, there are strong legislative rules in the field of unfair dismissal. Subsequently, dismissing someone on the grounds of their race, religion, sexual orientation or gender is not permissible in employment law. An employer treating an employee in an unequal manner based on these grounds is also a not permitted. Subsequently, if an employee believes they have been treated unfairly or dismissed unfairly based on these grounds they need to contact legal representation immediately.
In the event of a person being severely disabled the employer cannot dismiss the employee because of their disability. Again this would be viewed as against equality legislation. People with severe disabilities are also afforded at least the minimum notice period requirements should they face dismissal at any point. The employer also needs to ensure that they are working in accordance with relevant official public authorities such as the Integration Office (“Integrationsamt” in German). Another protected group are mothers in the midst of maternity leave. Allowance for dismissal in the case of pregnant mothers is only permitted in exceptional cases. The public body in question in these cases is the Authority for Work Security, Health Protection and Technical Security (in German “Landesamt für Arbeitsschutz, Gesundheitsschutz und technische Sicherheit”).