Whether you are an employee or an employer in Germany, it is vital to know the law regarding notice periods. People changing work or being dismissed is a regular occurrence in business. Subsequently, notice periods are essential for allowing both employees and employers to plan for the future.
The requirement for a notice period depends on the nature of the dismissal, and the period involved in the notice period is based on a variety of factors, primarily the length of time a person has worked with a firm. At Schlun & Elseven Rechtsanwälte, our employment law specialists advise employers and employees on all matters relating to notice periods.
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Notice Periods in Germany: Statutory Rules, Employment Contract & Collective Agreements
Usually, notice periods in Germany are laid out in the employment contract between the contractual parties. It is worth referring to the original contract you signed with your employer to find this information if you are unsure about them.
If the contract does not outline the timeframes, the notice periods are then legislated for by statutory requirements. § 622 BGB/German Civil Code provides these requirements for notice periods. The statutory time frames are listed here:
- 0-6 months employed: notice period is 2 weeks to any day (not the end of or 15th of the 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.
The timeframe is generally set at a minimum of 4 weeks, ending either at the end of the month or on the 15th of the month based on when the termination notice was provided.
Away from the employment contract and statutory requirements, collective agreements are also seen as legislative means by which notice periods are regulated. However, specific requirements 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 a collective agreement be in place, it can allow for the extension or reduction of the statutory notice period. Generally, where collective agreements apply, they are there to enable the employee to have a more extended notice period.
It is worth noting that the emphasis is on when the employee received their notice. The notice period does not begin when the employer dismisses the employee, nor does it start when the employer decides to draft the notice letter. 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.
Exceptions to Notice Period Requirements
Not all employees are provided with the notice periods outlined above, and there are other means by which notice periods do not need to be followed. There are exceptions to the rules of German law, such as:
- Employees still in the probation period of their work – usually the first six months of their employment – do not need to be provided with a 4 weeks 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 fewer than three months. The employer can outline a notice period shorter than the usual four-week requirement within these employment contracts. However, they are no longer seen as short-term workers if the contract is extended beyond three months.
- Part-time workers: in the case of part-time workers, their work period is calculated at half the time of other workers (if they work 20 hours per week) and at three-quarters of the rate (if they work 30 hours a week.)
- Small businesses: if the employer, as a rule, employs not more than 20 employees except those employed for their own training and the notice period does not fall short of four weeks.
- Employment termination agreements: the employer and employee mutually agree on the details regarding the working contract’s termination. This mutual agreement must be in writing and agreed to by both sides. It will outline the termination conditions, and the two sides can decide on a date by which the employee will leave the company.
At Schlun & Elseven Rechtsanwälte, our employment specialists advise on all these matters.
Employee Notice Periods
It is, of course, not only employers who end the employment relationship. Employees can also terminate their employment; if this is the case, it is worth bearing in mind the notice period they must provide their employer.
Employees cannot simply leave their job without giving their employer some time to start the necessary reorganisation.
The rules are different here as, per 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, employers must ensure that the employment contract stipulates a more extended notice period if they wish to have more time to find replacements, reorganise the office etc.
The notice period in the employment contract will supersede the minimum provided by those in the BGB, provided they do not go below the minimum requirement.
It is worth knowing that the employer cannot treat the employee in a discriminatory manner during this time. Just because the employee has handed in their notice period does not mean the employer has free rein until the employee leaves. The employer must continue to pay the employee’s wage and not treat them in a manner that could be deemed as discrimination.
If you are considering changing your employment, make sure to consider the relevant notice periods.
Extraordinary Termination & Unfair Dismissal
Extraordinary termination allows an employer to dismiss an employee without the requirement for a notice period. This allowance is strictly regulated through acts such as the German Civil Code and the Protection Against Unfair Dismissals Act (Kündigungsschutzgesetz or KSchG) to ensure fairness in the process.
However, the option is available to employers where an employee has behaved to permit the employer to consider such a step. Such behaviour includes:
- Where the employee has performed criminal actions,
- Where the employee has seriously misconducted themselves against customers/colleagues 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 faked illness or been repeatedly late for work.
For less severe cases, the employer should issue formal warnings to the employee.
Proceeding to dismiss someone for a minor infraction without warning may lead to legal difficulties for the employer. However, in a serious incident where the employer has justified reasons for considering dismissal as the best course of action (having taken into account other possibilities), the employer may be able to dismiss an employee without having to provide a notice period.
This is an extraordinary dismissal, so if you are not sure whether this action is justified as an employer, make sure to obtain legal assistance regarding this issue.
An employer needs to have a valid reason to dismiss an employee. Such causes include conduct, consistent underperformance in the workplace, the company closing, folding, downsizing or restructuring and issues regarding chronic or long-term illness.
However, there are strict 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 unequally treating an employee based on these grounds is also not permitted. Subsequently, if an employee believes they have been mistreated or dismissed unfairly based on these grounds, they need to contact legal representation immediately.
If a person is 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. The employer also needs to ensure that they have consulted with relevant public authorities such as the Integration Office (Integrationsamt).
Another protected group are mothers on maternity leave. Allowance for dismissal in the case of pregnant mothers is only permitted in exceptional circumstances. In these cases, the public body in question is the Authority for Work Security, Health Protection and Technical Security (“Landesamt für Arbeitsschutz, Gesundheitsschutz und Technische Sicherheit”).
Our lawyers advise on all matters relating to extraordinary termination, unfair dismissal, and employment termination agreements.
Practice Group: German Employment Law
Practice Group:
German Employment Law
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