Termination Agreement
By a termination agreement (including cancellation of a contract called) is a contractual relationship ended. It is a third type of contract termination , in addition to the one that occurs automatically as a result of the passage of time or the occurrence of a condition or as a result of the unilateral exercise of a structuring right (e.g. termination , revocation or withdrawal ). It is characteristic of this that it takes place by mutual agreement and can therefore be specified in more detail. Typical agreements in the context of a termination agreement are the agreement of severance pay , distance or a non-competition clause .
Cancellation contracts are particularly widespread in the field of labor law in order to circumvent the protection against dismissal that applies to termination under labor law .
Contracts for the termination of employment
Labor law aspects
The parties can terminate the employment relationship in the termination agreement without observing any deadlines; this allows employees, for example, to leave the company without observing the notice period . The employer does not need to observe any dismissal protection provisions; for example, he does not have to make a social selection. To compensate for the loss of the job, severance payments are often agreed in termination agreements by the employer to the employee.
In Germany, in accordance with Section 623 of the German Civil Code (BGB), the written form must be adhered to in the case of termination agreements to end the employment relationship . Otherwise the termination agreement is void and the employment relationship continues.
If the initiative to conclude a termination agreement comes from the employer, the employer may under certain circumstances have to point out adverse consequences (e.g. for the right to unemployment benefit or for the company pension) if this is necessary taking into account the special circumstances of the individual case and as a result of a comprehensive weighing of interests is.
A termination agreement concluded at the workplace is not a doorstep sale within the meaning of Section 312, Paragraph 1, Clause 1, No. 1 BGB and therefore not revocable according to Section 312 , Section 355 BGB.
An employee who has been urged to conclude a termination agreement can, under certain conditions, pursuant to of § 119 to § 123 of the German Civil Code (BGB) in order to obtain continued employment. For example, if an employer threatens to terminate the contract if the termination agreement does not materialize, the termination agreement can be contested under Section 123 of the German Civil Code (BGB) if termination would not have been considered at all.
If there are periods of reflection or rights of revocation guaranteed by the collective agreement in connection with termination agreements, the employer may not simply ignore these in the contract text.
Unlike in cases of termination of the employment relationship through termination by the employer, the works council has no right of co-determination in an individual termination agreement .
Consequences under German law under social law
The conclusion of a termination agreement in Germany can have negative social consequences for an employee if he is then dependent on unemployment benefit or unemployment benefit II .
Blocking period for unemployment benefits and a reduction in the period of entitlement
Anyone who concludes a termination agreement has an effect on the termination of the employment relationship - as with their own notice of termination - and thereby causes their unemployment. If the employee has no good reason for this, there is, as a rule, a twelve-week blocking period due to work abandonment in accordance with Section 159 (1) No. 1 SGB III for unemployment benefits . The entitlement to unemployment benefit is reduced by the number of days of the blocking period, but at least by a quarter of the entitlement period ( Section 148 (1) No. 4 SGB III). In the case of unemployment benefit II, the standard benefit is reduced by at least 30 percent for three months according to § 31 , § 31a and § 31b SGB II .
An important reason for terminating the employment relationship by means of a termination agreement exists only if the employee was otherwise objectively and lawfully terminated at the same point in time for non-behavioral reasons and the acceptance of the termination would not have been reasonable for him.
Termination agreement with severance pay
If the employee is granted a severance payment for operational reasons in the termination agreement in accordance with Section 1a (2) Dismissal Protection Act , the amount of which does not exceed half a gross monthly salary for each year of the existence of the employment relationship, it must be assumed that there is an important reason for the termination of the employment relationship is present, a blocking period does not occur.
In the case of higher severance payments or termination agreements with severance payments that have no operational or behavioral cause, the employer must have threatened legal dismissal so that the employee has an important reason to the side. However, proof of a particular interest in the amicable solution is no longer required as a rule; even the employee's interest in the severance payment arrangement offered can make it unreasonable to wait for the employer to resign outside the group of executives.
If a severance payment is paid and the employment relationship ends earlier than it would have ended with a proper, timely termination by the employer, or, if the proper termination was excluded for an unlimited period, before the expiry of 18 months, then (under Circumstances in addition to the blocking period of 12 weeks) according to § 158 SGB III no unemployment benefit is paid for the duration of a rest period. The duration of the rest period depends on the length of the notice period and the amount of the severance payment paid; it lasts up to the expiry of the employer's notice period, but no longer than one year. However, in contrast to the suspension of the entitlement due to a blocking period, this rest period does not reduce the duration of the entitlement.
Severance payments have no influence on the amount of the unemployment benefit itself, they do not lead to an offset against the unemployment benefit and do not reduce its amount.
A severance payment that is paid as compensation for the time after the termination of a job subject to compulsory insurance is not a salary subject to contributions. No social security contributions are to be paid from the severance payment. Severance payments are subject to income tax , however , in the case of real severance payments, the so-called fifth rule can apply. Social security contributions must be paid from what are known as false severance payments (“ contribution ”). Contributions to U1 and U2 levy are not due.
Contracts for the termination of housing leases
Contracts for the rental of living space are usually open-ended and their termination is subject to various requirements. Instead of terminating unilaterally, it makes sense, even in the context of rental contracts, to cancel the contract by mutual agreement - for example in view of otherwise mandatory deadline regulations. The written form requirement of termination does not apply to the termination agreement.
literature
- Laurenz Andrzejewski, Hermann Refisch: Separation culture and employee loyalty - making dismissals, dismissals, transfers fair and efficient . 2015, 4th edition Wolters Kluwer Verlag Cologne, ISBN 978-3-472-08660-4
- Jens Peter Hjort: Cancellation agreement and compensation: strategies, tips and model contracts , 4th edition, 2010, Bund-Verlag, ISBN 978-3-7663-6019-9
- Einiko Benno Franz: The conclusion of a termination agreement , 2006, 639 S., ISBN 978-3-631-54984-1
Individual evidence
- ↑ Definition of termination agreement ( Memento of August 27, 2009 in the Internet Archive )
- ↑ Federal Labor Court , judgment of November 27, 2003, Az. 2 AZR 135/03, AP No. 1 to § 312 BGB
- ↑ Avoidance of termination agreements ( Memento of March 4, 2016 in the Internet Archive )
- ↑ LAG Hamm: Employer must not withhold the right of revocation in the (form) termination agreement. In: Betriebsratspraxis24. Retrieved August 6, 2014 .
- ↑ a b c Federal Social Court , judgments of July 8, 2009 ( B 11 AL 17/08 R ) and July 12, 2006 ( B 11a AL 47/05 R )
- ↑ Federal Social Court, judgment of February 21, 1990, Az. 12 RK 20/88 (consistent case law), confirmed again in the judgment of October 9, 2007, Az. B 5b / 8 KN 1/06 KR R.
