Job Terminations in Germany: Unfair Dismissal
In Germany, employees have protections to prevent them from sudden job terminations. In the case that an employer seeks to dismiss an employee, they have to provide the employee with notice of the dismissal. This requirement for written notice is legislated for under § 623 BGB. Our page on typical notice periods in Germany will provide you with greater insight as to how much notice is required in different situations.
Only in specific situations can an employee be dismissed without notice. Such circumstances include the following:
- The employee has engaged in criminal activity,
- Serious misconduct on the part of the employee,
- Breach of confidentiality,
- If the employee does not carry out their contractual obligations,
Even where an employee has the virus this is not grounds for dismissal. In normal circumstances employees are not obliged to inform their employer as to what health conditions they have. However, due to the contagious nature of the disease and the widespread knowledge surrounding it, employees should inform their workplace if they are aware that they have contracted the virus. If you believe that dismissal from your job is linked to contracting the virus, then make sure to get in contact with our employment law attorneys.
If companies are considering widespread job terminations for employees they should take their options into account such as reduced working hours and whether other alternative arrangements can be made. Dismissing employees can involve a number of legal complexities so it is advisable to consult with our employment lawyers if this is deemed to be the best decision for the company.
What Actions can Companies take Instead of Job Terminations
It is clear that this situation is causing complications for businesses in many sectors around Germany. The German government has encouraged companies to avail of reduced working hours (“Kurzarbeit”) in order to protect jobs. Applying reduced working hours is a temporary measure to help companies get over issues such as what we are facing in the current crisis. This programme allows for companies to receive government financial support in the payment of employee wages while the crisis is ongoing. The allowance according to law is for up to 6 months.
The conditions for compensation for Kurzarbeit / reduced working hours come from § 95 Social Security Code / SGB III and is allowed for where:
- the loss of work is substantial,
- it is due to economic reasons or an unavoidable event.
For many businesses the effects of the current crisis will put them into these categories. However, it cannot simply be applied for by all companies. They have to show that their business has been hit substantially by the crisis and that the loss of work is substantial. The company also should consult with their work councils and employee groups as well as contact the Arbeitsagentur about their intention and they should do this prior to starting the initiative. Companies that do not follow the requirements will not be entitled to avail of governmental support as it is not designed as a unilateral decision that can be made by the company.
What happens if the Company has to Close?
The employer cannot simply stop paying their employees if the company has to close temporarily. A closure could be necessary if it is found, for example, that cases can be traced back to the company. However, even in this situation or where business is slowed, because of the supply chain disruptions or due to government order, the company is still obliged to pay their employees. Once again, it is recommended in this situation to use the route of Kurzarbeit / reduced working hours and to find other alternatives. If required our employment lawyers can act as a go-between for employers and their staff in negotiating how best to deal with the issues arising.
The employee with COVID-19 coronavirus should also not fear about losing their pay. Under the Continued Remuneration Act § 3 workers are entitled to receive their wage should they be forced to miss work due to illness. When it comes to those in quarantine, they should see that action as protecting other workers from the possibility of infection. These workers are protected in terms of payment as well through § 56 of the Protection Against Infection Act they are entitled to their pay even while not in the office. These people with the virus who have to stay out of the workplace due to fear that they will spread COVID-19 are entitled to compensation from the state during their time out of work.
Companies who are fearful of whether they can continue business during these difficult circumstances please see our page on Insolvency in Germany: COVID-19 Coronavirus to determine whether this is the right option. Our legal advisors can help you in making the best decision for your business.
If you do believe you have an unfair dismissals case based on COVID-19 coronavirus then please contact our legal team as quickly as possible. In these cases it is vital to act quickly to ensure that deadlines are reached in good time. Even with the ongoing crisis it is important to make sure that paperwork is completed in accordance with the deadlines. Obviously this current crisis is having a big impact on the work of the courts in Germany (see: Litigation in Germany: COVID-19 Coronavirus for more information) but deadlines remain. The case may not be heard for a longer period of time than is usually the case but the paperwork should still be filed on time.
Having a specialized employment lawyer who is experienced in this field can be of great value. At Schlun & Elseven Attorneys our employment attorneys are experienced in working with employers and employees and will aim to resolve the issue outside of court. It is possible that the case can be resolved once the parties are aware of the options available to them during this time of adversity.
Employment Lawyers in Germany
At Schlun & Elseven Attorneys, our employment law team provide advice on a wide range of employment law issues. As well as the assistance we can provide on topics such as reduced working hours and what constitutes unfair dismissal we also cover many other topics such as notice periods under German law. Should you wish to contact us, use the contact details below and from there we can remain in contact by phone, email and through video conferencing. Our offices are in Cologne, Düsseldorf and Aachen but due to the current crisis, contacting us remotely is strongly advised.
We provide advice to both employers and employees and it is especially important to have the right information in crisis times such as these. We provide our legal services in a range of languages including English and thus can make sure that our counsel does not get lost in translation. If you have any further questions on employment law and COVID-19 around job terminations or other issues please contact us directly. We are looking forward to working with you.