Notice periods in labor law

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This article provides an overview of the notice periods in labor law in Germany, Austria and Switzerland.

Legal situation in Germany

In Germany, notice periods in labor law can result from the employment contract, a collective agreement applicable to the employment relationship or from the law, normally from Section 622 of the German Civil Code (BGB) .

Statutory notice periods

Section 622 BGB contains the statutory notice periods for normal cases.

§ 622 Paragraph 1–3 BGB

Section 622 (1) of the German Civil Code (BGB) stipulates a basic notice period of 4 weeks on the 15th or last day of a calendar month.

For the employer , according to Section 622 (2) sentence 1 of the German Civil Code (BGB), this period increases after the employment relationship has lasted

  1. 2 years to 1 month to the end of a calendar month,
  2. 5 years to 2 months to the end of a calendar month,
  3. 8 years to 3 months to the end of a calendar month,
  4. 10 years to 4 months to the end of a calendar month,
  5. 12 years to 5 months to the end of a calendar month,
  6. 15 years to 6 months to the end of a calendar month,
  7. 20 years to 7 months to the end of a calendar month.

Section 622 (2) sentence 2 BGB was repealed on January 1, 2019. He determined that times before the age of 25 should not be counted. The ECJ ruled that the non-consideration violates the prohibition of age discrimination specified in Directive 2007/08. The labor courts also counted the length of employment before the age of 25.

According to Section 622 (3) BGB, the employment relationship can be terminated with a notice period of two weeks during an agreed trial period, for a maximum of six months.

Special legal regulations

§ 622 BGB is superseded in special cases by more specific legal regulations. § 86 SGB IX applies in favor of the employee, i.e. does not exclude a longer period of notice according to § 622 BGB. Sections 22 BBiG, 113 (1) sentence 3 InsO and Section 21 (4) sentence 1 BEEG deviate from Section 622 BGB to the disadvantage of the employee. A fixed-term employment relationship is only subject to ordinary termination if this is agreed in an individual contract or in the applicable collective agreement ( Section 15 (3) of the Act on Part-Time Work and Fixed-Term Employment Contracts (Part-time and Temporary Employment Act - TzBfG)).

  • According to § 86 SGB IX, a period of notice of at least four weeks must always be observed when dismissing a severely disabled person.
  • According to Section 22 of the Vocational Training Act , a trainee can be terminated at any time during the trial period without observing a notice period.
  • According to Section 113, Paragraph 1, Clause 3 of the Insolvency Code (InsO), the notice period for an insolvency administrator is a maximum of three months to the end of the month.
  • According to Section 21 (4) sentence 1 of the Federal Parental Allowance and Parental Leave Act (BEEG) (only) in the case of a parental leave limitation according to Section 21 (1) BEEG, the employer can enter into the fixed-term employment contract “with a period of at least three weeks, but at the earliest to the end cancel parental leave ".

Collective agreement notice periods

According to Section 622 (4) of the German Civil Code (BGB), different, even shorter deadlines can be determined through collective agreements , which can then also be agreed by those not bound by collective bargaining agreements within the scope of the collective agreement. Longer notice periods are often agreed in collective agreements, depending on the length of service, e.g. B. in the public service in § 34 TVöD . The notice period there is max. 6 months at the end of a quarter for more than twelve years of employment.

Individual contractual notice periods

According to Section 622 (5) BGB, a shorter notice period than the one specified in Section 622 (1) BGB can only be agreed in individual contracts if an employee is hired for temporary help, a maximum of three months, or if the employer usually does not exceed 20 Employees without trainees and the notice period is at least four weeks. Part-time employees with a regular weekly working time of up to 20 hours are to be taken into account when determining the number of employed employees with 0.5 and with no more than 30 hours with 0.75.

The contracting parties are free to agree longer notice periods. According to Section 622, Paragraph 6 of the German Civil Code, however, it is forbidden to agree a longer notice period for an employee than for the employer. Only so-called "equality clauses" are permitted. In these cases, the employment contract parties agree that the notice periods to be observed by the employer also apply to the employee. Such a regulation always takes effect if the notice periods for the employer according to Section 622 (2) BGB are extended due to the increasing length of service of the employee.

Procedural matters

Failure to comply with a contractual, collective agreements or statutory notice period for termination by the employer within the three-week period for bringing proceedings to § 4 Consumer Protection Act by an appeal to the Labor Court to be attacked. The case law of the Federal Labor Court (BAG) is inconsistent, in any case confusing. With the judgment of September 1, 2010, the 5th Senate of the BAG abandoned earlier case law to the contrary. The 6th Senate, however, assumes that the notice period can also be asserted outside of the three-week period.

Problems under social security law in the event of failure to comply with the normal notice period

If upon termination of an employment relationship - for example by a termination agreement - not complied with the applicable notice period for the employer and severance will be paid, this usually leads to suspension of the right to unemployment benefits and to enter a lockout time . In the past, attempts were often made to circumvent the blocking period by means of a settlement agreement .

Legal situation in Austria

In Austria there are different notice periods depending on whether the employees are salaried or blue-collar workers . For the former, the Salaried Employees Act (AngG) applies, for the latter the General Civil Code (ABGB) from 1812.

The ABGB determines:

§ 1159a. (1) If an employment relationship, which has services of a higher kind as its object, mainly takes up the employment of the employee and has already lasted three months, a notice period of at least four weeks must be observed regardless of the type of remuneration assessment.
Section 1159b. In all other cases, the employment relationship can be terminated with a notice period of at least fourteen days.
§ 1159c. The notice period must always be the same for both parties. If different deadlines have been agreed, the longer deadline applies to both parties.

For employees, the notice period according to § 20/2 AngG on the part of the employer is:

6 weeks from the beginning of the employment relationship
2 months after completing the second year of service
3 months after completion of the fifth year of service
4 months after completing the fifteenth year of service
5 months after completing the twenty-fifth year of service

Employment relationships of employees always end at the end of a quarter, unless otherwise agreed in the service contract.

Fixed-term employment relationships can only be terminated if this has been expressly agreed in the employment contract.

Legal situation in Switzerland

After the probationary period, the following statutory notice periods apply (Art. 335c OR):

  • 1 week during the trial period (first to third month)
  • 1 month in the first year of service
  • 2 months in the second to ninth year of service
  • 3 months in the following years

These notice periods can be increased by a contract. The notice period must be the same for employer and employee, otherwise the longer of the two periods applies.

Footnotes

  1. ↑ Federal Law Gazette . Retrieved October 29, 2019 .
  2. ↑ ECJ, judgment of January 19, 2010 , Az. C-555/07, full text.
  3. ↑ BAG, judgment of December 15, 2005 , Az. 2 AZR 215/05, full text.
  4. ^ BAG, judgment of September 1, 2010 , Az. 5 AZR 700/09, full text.
  5. ↑ BAG, judgment of July 22, 2010 - 6 AZR 480/09 - Rn. 10 = NZA 2010, 1142

literature

  • Labor Law Handbook Schaub, CH Beck, 14th edition 2011, § 126. Notice periods, pp. 1483–1494, ISBN 978-3-406-61960-1