Unfair Dismissal in Germany: Processes and Employees’ Rights

An action for protection against dismissal can only be brought within three weeks of the dismissal (§ 4 sentence 1 KSchG). However, make sure to take legal action in good time. The deadlines must be observed at all costs.

There are many examples in which a termination is invalid. For example, an employer must always give notice in writing. It is invalid if they do not do so (§ 623 BGB).

A dismissal may also be invalid if it is given to a pregnant woman during pregnancy and without the prior consent of the occupational health and safety authority (§ 17 Maternity Protection Act). If the employer did not consult a works councilnsulted before the dismissal, the dismissal is also invalid (§ 102 Works Constitution Act). If one of these cases applies to you, you can expect your action for protection against dismissal to be successful.

However, it is often advisable to file a complaint, even in situations that are not so obvious. Were you dismissed on the pretext that you had committed a serious breach of duty, but it is not true? Were you dismissed for operational reasons, while younger colleagues who have been employed for less time and do the same work as you were not dismissed? Has your employer dismissed you for misconduct, but you have only been warned in vague terms about this alleged breach of duty? If this is the case, you should doubt the effectiveness of the employer’s notice.

In such cases, it makes sense to seek legal advice, as an action for protection against dismissal is only promising if it can be well substantiated.

As a rule, a “conciliation hearing” takes place within two weeks after the complaint has been filed (§ 61a (2) Labour Court Act). Often a settlement is reached there.

The employee and employer can agree on terminating the employment relationship and paying a severance package. With a view to the settlement, an action for protection against dismissal can also be brought if it is clear to the employee from the outset that no continuation of the employment relationship is desired.

If no agreement is reached, a chamber hearing is held before the chamber, which is fully staffed. The time between the conciliation and chamber hearings is usually between three and five months.

Before the hearing, the employer is allowed to respond to the complaint in writing. The employee is then in a position to respond in writing. Before the chamber, the parties can try again to find a settlement.

If this is not the case, the chamber decides, and the dismissal protection proceedings end unless an appeal is filed with the regional labour court.

In principle, the employer is not obliged to pay severance pay. Severance pay is, therefore, generally based on a mutual agreement between the employer and the employee.

Exceptions are usually only found in two rare situations. The labour court may, upon application, terminate the employment relationship and order the employer to pay if the termination was invalid and the employee cannot reasonably be expected to continue the employment relationship. This situation applies, for example, if the employer has made disparaging remarks about the employee. However, unreasonableness is not assumed lightly.

Furthermore, the employer is to be ordered to pay severance if stipulated in the employment contract or the like that termination for operational reasons directly leads to a claim for severance pay.

Severance pay, therefore, usually results from a settlement. Although the employee has no legal claim to severance pay in principle, the employer often agrees to such a settlement if they see a risk of losing the case. This situation would have the consequence that he would have to pay the employer wages in the period from the notice of termination to the pronounced invalidity even if no work was done during this period (§ 615 BGB).