Termination (German labor law)

The termination in German labor law is a unilateral declaration of intent that must be received, through which the employment relationship is to be terminated for the future at the will of the terminating party, either immediately or immediately after the notice period has expired. The termination of an employment relationship is subject to special formal requirements and is otherwise restricted by law.

Content and form

The termination of an employment contract must be in writing in order to be effective ( § 623 in conjunction with § 126 BGB ). This means that the termination must be personally signed by the terminating party or a legal or authorized representative . A mere paragraph is not enough. If the terminating party does not sign himself or through a representative, the termination has no formal effect. This applies, for example, if a mere messenger signs instead of the representative . The termination signed “on behalf” is therefore generally ineffective, unless the interpretation indicates otherwise, for example in the opinion of the Rhineland-Palatinate state labor court.

Regardless of whether the termination is issued by the employer or the employee, various formal requirements must be met:

full address of the sender and recipient
Date for observing the notice period
relevant deadlines for termination

By including the term “termination” in the subject line, the issued document is legally binding as a termination. If one of the listed information is missing, however, it can be judged as legally ineffective.

When receiving a notice requiring declaration of intention takes effect only when the receiver approaching . The relevant deadlines in connection with the termination only begin to run from this receipt. The date on the letter of termination is not relevant.

If the termination is declared by an authorized representative , it is ineffective if the power of representation is not proven at the same time as an original power of attorney and the terminated person immediately rejects the termination for this reason. This does not apply if the principal had informed the terminated party of the authorization ( Section 174 BGB).

The employee who is to be terminated should be informed in the notice of termination that he or she should contact personally at least three months before the termination of the employment relationship or, if there are less than three months between the knowledge of the termination date and the termination of the employment relationship, within three days of becoming aware of the termination date the employment agency job seeker 's needs and their own activities in the search for a job are required ( § 2 i. V. m. § 38 SGB III). However, this is not a requirement for the termination to be effective. The employer is obliged those terminated to notify the Employment Agency to exempt from work with continued payment of remuneration ( § 2 SGB III i. V. m. § 616 BGB).

As a rule, it is not necessary to state the reasons for termination in the letter of termination. This does not apply to the termination of a pregnant woman ( Section 17 Maternity Protection Act ) and the termination of a vocational training relationship after the probationary period has expired ( Section 22 BBiG ).

Time of assessment

As with all structuring rights , the effectiveness of the termination is only based on the circumstances at the time the declaration was received by the recipient. A subsequent loss of the reason for termination does not matter. Conversely, reasons for termination that only arose after the notice of termination took effect cannot retrospectively justify the termination already declared. The fact that it should not depend on a subsequent elimination of the reason for termination is often not considered to be appropriate in areas of law with a pronounced social component. For this reason, the case law has also made corrections in labor law: The termination remains effective, but the employee is entitled to re- employment if the reason for termination does not apply during the notice period , e.g. B. because an intended job reduction is not implemented by the employer.

Termination by the employee

An employee can terminate his / her employment relationship at any time without stating reasons, subject to the notice period. Unless otherwise regulated by an employment contract or collective agreement , the notice period for the employee is four weeks to the 15th or the end of the month, Section 622 (1) BGB. During an agreed trial period , it is two weeks, Section 622 (3) BGB.

Longer notice periods are often agreed in collective agreements, which depend on the length of service with the company. B. in the public service in § 34 TVöD . There the notice period is a maximum of six months at the end of a quarter if the employee has been with the company for more than twelve years. However, shorter deadlines than those provided by law can be agreed in collective agreements.

Often the employer tries to release the resigning employee before the end of the notice period against continued payment of the salary and to exclude them from the workplace . With such a unilateral exemption, however, the employer interferes with the employee's entitlement to employment. The Federal Labor Court therefore only allows unilateral exemption if the employer's overriding and legitimate interests stand in the way of continued employment. Such an interest worthy of protection can e.g. B. the protection of trade and business secrets when the employee changes to the competitor.

Termination by the employee must also be in writing. A confirmation of termination by the employer is not required under any circumstances. However, if the employer denies access to the employee's declaration of termination in a dismissal protection process, the employee bears the burden of proof in this regard . Such proof of receipt of the notice of termination can be provided, for example, by means of an acknowledgment of receipt .

The employer is required after the employee leaves the company, the employee a vacation certificate hand over the certificate, a printout of the electronic income tax evidence and, if necessary, that its content in the last three years prior to leaving on the earnings ceiling of the statutory health insurance was further upon termination of employment at the request of a job reference .

Public service relationships

Employees who are in a public service and loyalty relationship such as civil servants , soldiers and professional judges are not subject to labor law. You cannot cancel; instead, they have the option of requesting their dismissal (see Section 33 BBG , Section 23 Paragraph 1 No. 4 BeamtStG , Section 46 Paragraph 3 SG , Section 21 Paragraph 2 No. 4 DRiG ). While a professional soldier may at any time request his release, one is soldier on time only to fire at his request when the remaining in service for him a special hardship would mean ( § 55 para. 3 SG ). Temporary soldiers are generally tied to the period of service to which they have voluntarily committed. A common method used by temporary soldiers who still want to be released earlier is to apply for conscientious objection ( § 2 KDVG ). If this is successful, the soldier is to be released for a period of time ( Section 55, Paragraph 1, No. 1 in conjunction with Section 46, Paragraph 3 of the SG ), whereby the requirements for the application are increased due to the previous voluntary obligation to serve in the armed forces be asked. Temporary soldiers generally lose all entitlements to professional development and service provision under the Soldiers' Welfare Act . He has to reimburse costs for civilian usable training or studies.

Termination by the employer

The employer not only has to comply with the written form ( § 623 BGB) and the applicable statutory (BGB) or employment or collective bargaining agreement deadline for the notice of termination, but in many cases must also observe general or special protection against dismissal . Apart from that, a termination must neither be unfaithful ( § 242 BGB) nor immoral ( § 138 BGB), not be disciplined and non- discriminatory . A Despite termination is ineffective. In addition, the employer must properly hear the works council or staff council - if any - before issuing the notice of termination ( Section 102 BetrVG, Section 79 BPersVG). In special cases it even requires the approval of the works council ( Section 103 BetrVG).

General protection against dismissal

Employees are subject to the Dismissal Protection Act if this applies to their employment relationship. To do this, upon receipt of the notice of termination, they must have been in an employment relationship with the terminating employer for at least six months - usually without interruption (waiting period within the meaning of Section 1 (1) KSchG), and the company must ensure that the Reach the required size. Since January 1, 2004, this has been the case in companies with generally more than ten employees. A transitional arrangement applies to employees who were already employed by the employer before January 1, 2004, since the limit of the so-called small business clause was up to five employees.

The Dismissal Protection Act differentiates between three groups of reasons that can socially justify a dismissal: operational, behavioral and personal.

Termination for operational reasons

The employer can terminate the contract for operational reasons if, on the basis of his entrepreneurial decision, he has decided to cut jobs or to shut down his business in whole or in part. This regularly requires a previous social selection among the comparable employees. Through a collective bargaining agreement or works agreement with the works council of a company, redundancies due to operational reasons are often excluded, especially in large industrial companies , but also in the public sector, partly depending on a minimum length of employment of the respective employees.

Behavioral termination

A behavior-related termination is justified if the employee - usually after receiving relevant warnings - continues to act in a culpable manner contrary to the employment contract (e.g. repeatedly arriving late). Internet abuse in the workplace has also become an important reason for dismissal in recent years. Labor court case law generally understands this to mean repeated and persistent internet surfing for private purposes with the help of professional internet access, against an express ban . Harassment from other employees ( stalking ) can also be a reason for termination.

Since the behavior-related termination regularly triggers a 12-week blocking period for unemployment benefit I (the employment agencies usually do not check whether the termination is actually legal), it is often particularly controversial in labor court proceedings. The behavioral termination is often pronounced as an extraordinary termination (see below).

Termination for personal reasons

Personal reasons lie in the person of the employee, they are generally not controllable by him. In contrast to behavior-related termination, a prior warning is therefore not required.

Examples are long-term illness, frequent short-term illnesses, withdrawal of the driver's license for drivers , loss of work permits for foreigners. In a judgment, the LAG Rhineland-Palatinate found absenteeism due to illness, which are above the average for the company, but do not exceed a duration of six weeks per calendar year, “not yet relevant to termination”.

Whether these types of reasons justify a certain termination depends on other circumstances, in particular a weighing of interests in the individual case.

The Federal Labor Court looked at in 2011, serving a multi-year imprisonment as a principle capable of justifying the ordinary termination of employment. If the criminal offenses on which the criminal conviction is based are unrelated to the employment relationship , only a person-related dismissal is usually considered.

Active advocacy of an anti-constitutional party or its youth organization can justify the personal termination of an employee employed in the public service. This is true even if the party is not (yet) by the Federal Constitutional Court for unconstitutional has been declared.

Termination due to illness

One form of personal termination is termination due to illness by the employer . He may also give this notice of termination during the existing incapacity for work caused by this illness .

The case law distinguishes between the following cases that can justify termination:

frequent short illnesses
long-term illness
permanent incapacity due to illness
total uncertainty of restoring the ability to work
reduced performance due to illness

There are four prerequisites for a termination due to illness:

Negative health prognosis, ie the concern of further illnesses in the previous extent
Significant impairment of operational or economic interests, e.g. B. disruptions to operations, continued payment costs, etc.
Lack of a milder remedy, lack of opportunity to continue working
Balancing of interests; Here it has to be checked whether the significant impairments have reached such an extent that the employer no longer has to accept the burden reasonably.

A termination due to illness is only effective when these four requirements are met.

Opposition of the works council

The works council's objection to an ordinary termination announced by the employer does not affect the effectiveness of the termination itself. However, if the works council has duly objected to a dismissal citing the grounds for objection of the ( Section 102 III BetrVG), after the dismissal protection action has been brought, the employer must continue to employ the employee at his request after the period of notice has expired until the legal dispute has been legally concluded with unchanged working conditions ( Section 102 BetrVG). However, the employer must be released from the obligation to continue to employ the employee during the dismissal protection process if this would represent an unreasonable economic burden for him.

Objections of the staff council

In the public service, the staff council is to be involved in accordance with the relevant staff representation law . Usually there is a right to participate, i. This means that the staff council can raise objections to the termination; however, this does not affect the effectiveness of the termination. The only decisive factor for the legality of the termination is that the staff council has been properly involved. If the employee is dismissed although the staff council has raised admissible objections to the notice of termination, a copy of the staff council's statement must be sent to the employee with the notice of termination. If, in this case, the employee has brought an action under the Dismissal Protection Act to determine that the employment relationship has not been terminated by the dismissal , the employer must, at the request of the employee, continue to employ the employee after the notice period has expired until the legal dispute has been legally concluded with unchanged working conditions.

Special protection against dismissal

Special groups of employees enjoy special protection against dismissal according to their own regulations, for example women during and for a limited time after pregnancy , employees on parental leave or during military service , disabled people , trainees , works council members , long - term employees who can not be terminated under the collective agreement , etc. Contrary to a widespread legal error , sick employees do not enjoy any special protection against dismissal.

In the case of severely disabled people and employees of equal status, prior approval from the integration office is required ( Section 168 of Book IX of the Social Code ). However, the severe disability or equality must already be recognized upon receipt of the notice of termination, or the application for a severely disabled person's pass or for equality must be submitted at least three weeks before receipt of the notice of termination.

The following regulations should be mentioned, for example:

People in a special situation:
- Prohibition of giving notice to expectant mothers up to four months after delivery, Section 17 MuSchG ; Main article: Special protection against dismissal for mothers Prohibition of ordinary dismissal of trainees after the end of the probationary period , Section 22 of the Vocational Training Act (BBiG);

Persons in special functions:

Prohibition of ordinary termination of works council members, electoral board members and candidates for election to the works council ( Section 15 KSchG), extraordinary termination only with the consent of the Works Council ( Section 103 BetrVG ). As the Federal Labor Court confirmed in 2014, the protection against dismissal for works council members does not mean that a fixed-term employment contract must necessarily be extended: A works council member with a fixed-term contract may not be refused a follow-up contract because he is active in the works council, the burden of proof for such a contract according to § 78 BetrVG, however, inadmissible discrimination lies with the works council member.
Prohibition of the ordinary dismissal of members of the staff council , members of the electoral board and candidates for this (relevant staff representation law )
Prohibition of ordinary dismissal of members of youth and trainee representatives (according to works constitution or staff representation law)
Prohibition of the ordinary dismissal of representatives of severely disabled employees § 179 SGB IX
Prohibition of ordinary termination of data protection officers § 4f para. 3 BDSG

Extraordinary termination

An extraordinary termination can end the employment relationship without observing a notice period , § 626 BGB. It is permissible if the terminating party has an important reason for the termination that makes the continuation of the employment relationship unreasonable until the termination period has expired , for example there is a suspicion of behavior that justifies termination .

Mostly it is a behavioral termination. One such reason for a dismissal can be made after a crime in operating (. As theft also of low-value items, see Bienenstich case , infidelity , physical injury ), in refusing to work , gross insult , gravierendem breach of trust, breach of health and safety regulations of substantial or non-payment of wage arrears, not in the case of alcohol dependence (here a proper, personal dismissal might be considered).

The extraordinary termination can also be issued with a social period of grace; this is particularly necessary in the case of operational dismissals of properly non-terminable employees, e.g. B. when a company closes. A special form when the job is lost is the so-called Orlando termination .

The extraordinary termination must be pronounced within 14 days after the reason for termination becomes known. Otherwise the termination is ineffective. The reason for the termination without notice does not have to be stated in the notice of termination, but the terminating party must inform the terminated party in writing of the reason for termination immediately upon request.

The works council or staff council must also be properly heard in the event of extraordinary dismissals .

Suspicion of termination

A suspected termination is a special form of personal termination. It can be extraordinary or ordinary. According to the Federal Labor Court , it is "permissible if strong suspicions are based on objective facts that are suspected of destroying the trust necessary for the continuation of the employment relationship". Before making a statement, the employer must have made all reasonable efforts to clarify the matter ; in particular, he must have given the employee the opportunity to comment.

If the dismissed employee is found to be innocent during the period of notice , he is entitled to be reinstated .

Material preclusion

If a dismissal is not attacked by a lawsuit at the labor court within three weeks of receipt , it is considered effective. This fiction of the Dismissal Protection Act has been in force since January 1, 2004 for all dismissals and all reasons for ineffectiveness (with the exception of the lack of written form), so it must be observed in any case. This did not apply to non-compliance with the applicable notice period ( notice periods in labor law ); With the judgment of the Federal Labor Court of September 1, 2010, this case law was changed.

severance pay

According to German law, the payment of a severance payment in connection with a termination is only provided for in a few and rare exceptional cases ( Sections 1a, 9 and 10 KSchG ). A claim to severance pay according to Section 1a KSchG requires that the employer submits an offer to pay severance payment when the employee is dismissed, if the employee does not file an action against the dismissal. The amount of the statutory compensation entitlement from § 1a KSchG is 1/2 month earnings for each year of the existence of the employment relationship.

The §§ 9 and 10 see the Consumer Protection Act for exceptional cases the imposition of a settlement by the court at the request of a party before, if the notice is indeed invalid for other reasons, but the termination of employment is required. The severance pay is up to 12 gross monthly earnings, for older employees up to 15 or 18 monthly earnings.

As a rule, however, a severance payment is the result of settlement negotiations between the parties. The amount of voluntary or, in exceptional cases, court-determined severance payments can vary widely; As a rule of thumb , however, 1/2 monthly salaries per year of employment can be assumed. This depends in particular on whether a termination by the employer can be justified particularly well or poorly, but also on the respective economic circumstances of the parties. Whether it is an extraordinary or an ordinary termination makes no compelling difference, but it can influence the outcome of the negotiation.

The severance payment is taxable like earned income , but in accordance with §§ 24 and 34 EStG with a moderate progression (one- fifth rule ).

However , there are no social security contributions , which is why it is also cheaper for the employer to accept a severance payment instead of a disputed gross wage . However, the obligation to pay contributions must not be circumvented by redeclaring wage entitlements as severance payments.

Difference to discharge

According to German labor court case law, the termination must be distinguished from the dismissal of the employee. The declaration of termination is the legal act aimed at the (legal) termination of the employment relationship , whereas the dismissal in German labor law merely describes the actual process of an employee leaving the company. On the one hand, the difference plays a role in the case of certain consequences under social security law of leaving (blocking / suspension of the entitlement to unemployment benefit ); on the other hand, in the case of mass layoffs, the layoffs must be reported to the employment agency beforehand.

After the decision of the European Court of Justice (ECJ) on January 27, 2005, this understanding of the term dismissal has become problematic in the area of mass dismissal notification . The ECJ understands the term dismissal, as it is also used in the corresponding European directive on collective dismissals, to mean the process of issuing dismissal.

literature

Jan Aufterbeck: The behavior-related termination as a gateway for BGB AT classics. In: JuS 2017, 15-19 (overview)
Laurenz Andrzejewski, Hermann Refisch (2015) Separation culture and employee loyalty - making terminations, dismissals, transfers fair and efficient. 4th edition Wolters Kluwer Verlag Cologne ISBN 978-3-472-08660-4
Stefan Kramer: Termination due to private internet use . In: Neue Zeitschrift für Arbeitsrecht (NZA), 2006, pp. 194–197.
Heiko Kreutzfeldt, Stefan Kramer: Legal issues relating to the termination of the vocational training relationship . In: Der Betrieb (DB), 1995, pp. 975–979.
Mathias Busch: The suspected termination in labor law . In: Monthly for German Law (MDR), 1995, p. 217 ff.
Georg-R. Schulz: Protection against dismissal in labor law from A – Z. From severance pay to certificate . 4th edition, CH Beck, Munich 2012, ISBN 978-3-406-58255-4 .
Markus Stoffels: The BAG's “Emmely” decision - just a clarification of misunderstandings? In: Neue Juristische Wochenschrift (NJW), 2011, p. 118.

Web links

Elke J. Jahn: How does the dismissal protection work? ZAF 2 and 3/2005, pp. 284–304
Ulrich Zachert : Protection against dismissal, fixed-term contracts and temporary work in Europe WSI Mitteilungen 3/2004, pp. 132–137

Specialist lawyer Arnd Potratz, The termination in labor law - A guide for HR departments, employees and employers , PDF

Individual evidence

↑ LAG Rheinland-Pfalz, judgment of December 19, 2007 , Az. 7 Sa 530 / 07s, full text = NZA -RR 2008, 403.

↑ Termination “OK” is not “OK” ( memento of the original from May 29, 2013 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. . @1@ 2

↑ Legal formal requirements for a termination. Retrieved February 13, 2019 .

↑ Fundamental: BAG September 6, 1989 AP KSchG 1969 § 1 illness no. 22; February 27, 1997 AP KSchG 1969 § 1 Reinstatement No. 1; April 29, 1999 AP No. 36 to § 1 KSchG 1969 illness.

↑ judgment v. August 19, 1976, Az. 3 AZR 173/75 = NJW 1977, 215.

↑ BAG, judgment of June 10, 2010 , Az. 2 AZR 541/09, full text - Termination without notice - Balancing of interests - Warning - "Emmely" case.

↑ z. B. BAG, judgment of May 31, 2007 , 2 AZR 200/06, full text = NJW 2007, 2653 = DB 2007, 1932 = NZA 2007, 922; BAG, judgment of 7 July 2005 , 2 AZR 581/04, full text = BAGE 115, 195 = NJW 2006, 540 = MDR 2006, 458 = BB 2006, 331 = NZA 2006, 98 = DB 2006, 397.

^ BAG, judgment of April 19, 2012, Az. 2 AZR 258/11; BAG, press release No. 32/12 .

↑ LAG Rhineland-Palatinate, judgment of September 5, 2011 ( Memento of the original of March 5, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Az. 5 Sa 152/11, full text. @1@ 2

↑ BAG, judgment of March 24, 2011 , Az. 2 AZR 790/09, full text = NJW 2011, 2825 = NZA 2011, 1084.

^ BAG, judgment of May 12, 2011 , Az. 2 AZR 479/09, full text.

↑ Dr. Daniel Weigert , Dismissal due to illness outside the Dismissal Protection Act, NZA 2019, 1671

^ LAG Düsseldorf, judgment of Wednesday, April 24, 2013 - 4 SaGa 6/13. April 25, 2013, accessed on January 17, 2020 (German).

↑ BAG, judgment of March 1, 2007 , Az. 2 AZR 217/06, full text = BAGE 121, 335 = BAGE 218, 335 = MDR 2007, 1143 = DB 2007, 1702 = NZA 2008, 302 = JR 2008, 44.

↑ BAG, press release No. 28/14 on the judgment of June 25, 2014, 7 AZR 847/12

↑ see BAG, judgment of April 27, 2006 , Az. 2 AZR 386/05, full text = BAGE 118, 104 = NJW 2006, 2939 = DB 2006, 1849 = NZA 2006, 977 = BB 2006, 2588.

↑ see BAG, judgment of December 15, 2005 , Az. 2 AZR 148/05, full text = BAGE 116, 336 = NJW 2006, 2284 = ZIP 2006, 1272 = MDR 2006, 1118 = BB 2006, 2359 = DB 2006, 1116 = NZA 2006, 791.

↑ BAG, judgment of September 1, 2010 , Az. 5 AZR 700/09, full text = NJW 2010, 3740 = ZIP 2011, 140 = NZA 2010, 1409 = EWiR 2011, 61.

↑ ECJ, judgment of January 27, 2005 ( Memento of the original of May 4, 2006 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Az. C-188/04, full text. @1@ 2

[1] LAG Rheinland-Pfalz, judgment of December 19, 2007 , Az. 7 Sa 530 / 07s, full text = NZA -RR 2008, 403.