Termination of Employment
The termination of an employment relationship is usually a significant event for employees because it affects their professional and economic livelihood . In normal working conditions an employee may assume that this momentous event does not occur for a long time and he at best, until his retirement on employment can hold. The employment contract is a long-term obligation and is therefore, especially in the case of normal employment, for an indefinite period. Termination therefore requires a specific event. Employers or employees can have an interest in terminating an employment relationship for a variety of reasons. For this purpose, the law provides for certain organizational rights with the help of which the termination of an employment relationship can be brought about.
The normal case is unilateral termination through termination . The amicable termination, i.e. the termination desired by employer and employee, is becoming increasingly important. This may already have existed at the time of hiring (in the case of fixed-term employment contracts ) or it may have been carried out afterwards ( termination agreement ). Further termination facts are the contestation , the occurrence of a dissolving condition (example: “limited until the sick employee Ms. N. recovers”), contractually agreed age limits , the death of the employee and the termination of the employment relationship by judgment . No reasons for termination are the death of the employer, a legal transfer of business in accordance with German Civil Code (BGB) , a business shutdown and the insolvency of the employer.
- Termination: The right of termination for employers and employees resulting from Periods of notice of BGB and the written form of must be observed BGB. Reasons for exclusion from termination are:
para 2 BGB, the staggered on the duration of employment.
- A termination is objectively excluded , for example in the case of retaliation ( BGB), ordinary termination of a fixed-term employment relationship (Section 620 Paragraph 2 BGB), termination on the occasion of the transfer of business (Section 613a Paragraph 4 BGB) or discriminatory terminations.
- Personal reasons for exclusion exist, for example, in the case of MPs ( Paragraph 2 of the Basic Law), confidants of the severely disabled ( Paragraph 3 of Book IX of the Social Code), pollution control officers ( Paragraph 2 of the Federal Immission Control Act ), data protection officers ( Paragraph 3 of the Federal Data Protection Act), Trainees after the probationary period has expired ( Paragraph 2 BBiG), persons drafted into military service ( ArbPlSchG), community service providers ( Paragraph 1 No. 1 Civil Service Act) and members of the works council , youth and trainee representatives ( Para . 1 KSchG), maternity protection and parenting ( (1) MuSchG, (1) BEEG) or during care leave ( (1) PflegeZG).
- The expiry of the deadline ends an employment relationship in accordance with Section 620 (1) of the German Civil Code (BGB) if the employment contract is concluded from the outset for a specific period of time or if it is limited in time (temporary employment relationship).
- Death : Since the work has to be performed personally and in case of doubt it is not transferable ( BGB), the employment relationship ends with the death of the employee.
- Age limit : there is no statutory age limit, but collective agreements , works agreements or employment contracts contain a provision according to which employment relationships end when they reach the age of 65 or any other year. According to (1) SGB VI, age limits based on the statutory retirement age can be effectively agreed.
- By means of a termination agreement, the employer and employee agree ( BGB) that the employment relationship should end immediately or on a specific date.
- Avoidance due to a material error or appeal to the nullity of the employment relationship. The reason for avoidance must already have been present when the employment contract was concluded and must be causal . Noteworthy are the error of explanation (spelling mistake in the employment contract), error of characteristics (characteristics of the employee that are objectively necessary for the performance of the work , such as the epilepsy of a bus driver unknown to the employer ) or fraudulent deception ( application with a falsified school leaving certificate , failure to indicate pregnancy ).
- Court ruling : In special cases there is also a termination of the employment relationship through a court decision ( (1) KSchG).
The ordinary termination causes the termination of employment unilaterally. Notice periods that result from the law ( BGB), a collective agreement or the employment contract must be observed . The termination must be made in writing in accordance with BGB . In addition to the general written form requirement, a written justification for the termination or the specification of a reason for termination is only required by individual statutory provisions.
The termination of the employee is generally not subject to any further requirements. Within the scope of the Employment Protection Act , the employer must demonstrate reasons that socially justify the termination. The employer can only terminate certain groups of people with special protection against dismissal for extraordinary reasons or with the consent of an authority. An effectiveness check of the termination, in particular the reason for the termination, the notice period and other formalities, usually only takes place in the context of dismissal protection proceedings before the labor court responsible for the legal dispute.
If there is a repayment clause, the termination by the employee may result in the financial reimbursement of benefits received or paid to the employer.
This requirement applies to both employee and employer terminations. While an important reason for termination by an employer can be seen, for example, in the commission of criminal offenses to the detriment of the employer (especially theft), an important reason for an extraordinary termination of the employee is regularly the considerable delay by the employer in paying wages.
A change notice is the termination of an employment relationship with an offer to conclude a new contract in order to continue it on changed conditions.
The mutual termination ( termination contract ) of an employment relationship is permissible. It must (like the fixed-term agreement and the termination) be in writing to be effective ( BGB ). However, the written form does not apply to the amicable termination in the form of a winding-up contract (agreement on the modalities of the processing of the employment relationship after the termination has been issued to avoid negative consequences for the granting of unemployment benefits). Disputes before the labor court about dismissals often end with a settlement about the termination of the employment relationship against payment of a severance payment . In substance, this is also a settlement agreement. The consequences under social law must be considered. According to the new case law of the Federal Social Court and the implementation instructions of the Employment Agency, the conclusion of a termination or liquidation agreement often leads to a blocking period when receiving unemployment benefits .
Employees should note that with the conclusion of a termination agreement they lose all protection against dismissal ; a subsequent action for protection against dismissal is no longer permissible. This also applies if the termination agreement was presented “surprisingly” by the employer, for example in a conflict situation. The protection that applies to doorstep selling , for example , does not apply here according to current case law. Affected employees should ask for at least one day's reflection period before signing a termination agreement and, if necessary, carefully examine the contract with legally qualified help. Under certain circumstances, termination without notice may even be more favorable because it can be fully examined in court, which is only applicable to a limited extent for the termination agreement.
The dissolution judgment is a special feature of labor law. The labor court can dissolve an employment relationship against payment of a severance payment by way of a decision by way of a draft lawsuit if a termination by the employer is socially unfriendly and therefore ineffective. Such a decision is only possible under strict conditions.
An employment relationship can be contested if the contestant made a mistake when entering into the contract, was threatened or fraudulently deceived. It should be noted, however, that deceiving an employee does not give the employer the right to challenge it, unless the deception was unlawful, i.e. he asked an inadmissible question, and the employee had the right to lie .
A dispute usually eliminates the contested contract retrospectively as if it never existed ( ex tunc ) . Services are reversed. Since you cannot reverse the work performed, the challenge of an employment relationship that has been implemented (so-called defective employment relationship) does not have a retroactive effect, but rather like a termination without notice with immediate effect. However, certain special services can be reversed.
The employee's death ends the employment relationship. Since work is a highly personal obligation ( BGB), it is not inherited. Wage and salary claims, however, are passed on to the heirs. A compensation claim that is due can also be demanded from the heir.
The employment relationship remains fundamentally unaffected by the death of the employer, the heirs take over the legal position of the deceased (§, BGB).
- Severance payment (German labor law)
- Unemployment benefit
- Entitlement to continued employment
- Turning away