Protection against dismissal
Under protection against dismissal one understands legislation that the termination of a contract more difficult or exclude. In particular, workers and tenants of living space are protected from a socially unjustified termination or, if the interests of both parties are weighed up, unjustifiably harsh termination.
Protection against dismissal in labor law
The protection against dismissal in labor law makes it more difficult for the employer to terminate an employment relationship properly by virtue of the Act on Protection against Employment (KSchG) or on the basis of collective agreements . A distinction can be made between general and special protection against dismissal. The general protection against dismissal consists in the fact that the legislature has only standardized certain reasons for dismissal as permissible in (2) sentence 2 KSchG. In addition to the general protection against dismissal, the legislature has excluded or made more difficult the dismissal of certain groups of people who are considered to be particularly in need of protection.
Historical development of protection against dismissal
Historically, protection against dismissal under labor law in Germany has long been characterized by two regulatory areas. On the one hand, regulations on minimum notice periods existed at an early stage, and on the other hand, the employer's possible grounds for termination have been limited since the 1920s.
Minimum notice periods for termination
The first legal regulation of a notice period was in the General German Commercial Code of 1861. Article 61 ADHGB stipulated that the "clerks" - the commercial clerks - could only be dismissed with a notice period of six weeks at the end of the quarter. The "Workers Protection Act" of 1891 extended this regulation to so-called technical employees, such as foremen in particular (§§ 133a ff. GewO). However, both regulations were indispensable , so that shorter notice periods could be agreed in individual contracts.
With the entry into force of the Commercial Code (HGB) in 1900, the regulation of the notice periods was extended to the effect that although there was still a waiver, the notice periods had to be the same for both sides and the notice could only be given at the end of the month (Section 67 HGB old version). An identical regulation was also introduced for technical employees in the trade regulations. For the other employees, the completely mandatory regulation in § 622 BGB (old version) applied (six weeks to the end of the quarter).
A more far-reaching regulation was then made in the Salaried Employees Protection against Dismissal Act of July 9, 1926, according to which longer periods of notice had to be observed in the case of longer periods of service. The Salaried Employees Protection Act was in effect until 1993 and is still referred to in the collective bargaining agreement for the travel industry, for example.
While the regulations described above only applied to white-collar workers, in some cases only to certain occupational areas, protection against dismissal for workers came into being much later. A real equality of workers and salaried employees only took place in all legal regulations after the fundamental decision of the Federal Constitutional Court of May 30, 1990, in which the BVerfG declared the different regulation of the notice periods for workers and salaried employees inBGB and the AngKSchG to be unconstitutional.
The trade regulations of 1869 only provided for a 14-day notice period for dismissing workers, which could be shortened by contract. As part of the Workers' Protection Act of 1891, this regulation was extended to the effect that the notice periods had to be the same for the contracting parties. Even the introduction of the BGB in 1900 did not bring any expansion of protection against dismissal. The notice period was linked to the remuneration period in § 621 BGB old version, for piecework workers a 14-day - but mandatory - notice period was prescribed in § 623 old version.
It was not until 1969 that the 14-day notice period ofGerman Civil Code became mandatory. At the same time, a longer period of notice was set for workers with a longer period of employment - but this fell short of the notice periods for employees under the Employees Protection against Dismissal Act of 1926.
It was not until 1993 that the same notice periods were set for blue-collar and white-collar workers,BGB. The Employees Protection Against Dismissal Protection Act was repealed.
Limitation of the reasons for termination
In addition to the development of the notice periods, protection against dismissal was also created in Germany by restricting the reasons for dismissal. The Works Council Act of 1920 provided a first regulation by establishing a lawsuit for "revocation of dismissal" in the event that the dismissal turned out to be " undue hardship " that was not caused by the behavior of the employee or the circumstances of the company was conditional. During the time of National Socialism, this regulation was limited and it was not until the Dismissal Protection Act from 1951 that only behavioral, personal or operational reasons for dismissal could be socially justified and thus effective.
Legal development since 1990
Since the beginning of the 1990s, protection against dismissal has experienced considerable restrictions in Germany. The aim of these restrictions is primarily to encourage employers to employ more people by making it easier for them to resign, thereby reducing unemployment. Whether there is a direct connection between dismissal protection and employers' hiring behavior is highly controversial between employees and employers or their respective stakeholders.
In principle, the Dismissal Protection Act only applies to employees who have been with the company for six months,(1) KSchG. Before the end of these six months, the employer is almost entirely free to terminate the contract. This waiting period practically forms a legally standardized trial period.
In addition, due to the so-called small business clause , the Dismissal Protection Act only applies in businesses with more than ten full-time employees , KSchG. The regulation of this “threshold value” for the applicability of the Dismissal Protection Act has been changed several times in the past. Originally, there was a threshold of more than five employees regularly employed in the company - all employees who work more than 10 hours a week or 45 hours a month were taken into account. This threshold was first changed in 1996 by the CDU / CSU / FDP government against the will of the opposition in the form of the Labor Law Employment Promotion Act of September 25, 1996. The threshold was raised to more than ten employees, with part-time employees according to a certain key were only taken into account proportionally.
This regulation was repealed by the SPD / Greens government on January 1, 1999 and replaced by the original regulation. However, the law on labor market reforms of December 23, 2003 reintroduced the higher threshold value from January 1, 2004, so that as a result the regulation from 1996 was adopted. A transitional regulation stipulates that, under certain conditions, the original regulation applies to employees who were employed in the company before January 1, 2004.
In addition, social selection has also been made easier for employers in that, on the one hand, top performers do not have to be included in the social selection and, on the other hand, older employees can also be more involved in the social selection in favor of a balanced age structure in the company, cf.(3) KSchG.
Finally, the possibility of fixed-term employment relationships results in an exclusion of protection against dismissal. Until 1985, time limits without an objective reason were illegal and therefore ineffective due to the associated circumvention of the Employment Protection Act. From 1985 onwards, these were permitted within a limited time frame by the law on labor regulations for the promotion of employment. The 1985 Employment Promotion Act was initially limited to two years, but was then extended several times. From January 1, 2001, these regulations were incorporated into the Part-Time and Temporary Employment Act (TzBfG).
In particular, the possibility of agreeing a calendar-based time limit of up to a total of two years (in newly founded companies: four years) without an objective reason,(2) TzBfG, effectively allows protection against dismissal to run dry for the duration of the time limit.
Protection against dismissal and AGG
The prohibitions of discrimination under European law, in particular the prohibition of age discrimination , now appear alongside the national principles on dismissal due to illness and social selection in the event of operational dismissals. Since 2006, the General Equal Treatment Act has been protecting against unauthorized discrimination when terminating an employment relationship ( (1) No. 2 AGG).
Political controversy about protection against dismissal
Protection against dismissal has been the subject of a controversial dispute between employers and employees since the introduction of the Employment Protection Act in 1951. The cause of this dispute is that the general protection against dismissal is characterized by the conflicting interests of the contracting parties.
For employees, the workplace forms the economic livelihood. Losing one's job can lead to impoverishment, social exclusion or even psychological problems. As a rule, not only the employee himself is affected, but also his family. The compulsion to earn an income through work also means that employees have to carry out work that is classified as inferior in terms of their qualifications (cf., for example, the reasonableness regulation in SGB II ). As a result of this situation, there is a high level of interest on the part of the employees in maintaining their jobs and thus also in strong protection against dismissal. From a legal point of view, this interest is protected by constitutional regulations, in particular the freedom to choose and pursue an occupation, Basic Law, and also by the general freedom of action, Paragraph 1 of the Basic Law.
For employers, protection against dismissal means a restriction of their entrepreneurial freedom of action and an additional cost burden. Employees who become less productive due to age, who fall ill or make mistakes, must continue to be employed because of the protection against dismissal; staff reductions due to falling sales cannot be carried out at short notice and in a timely manner. Therefore, there is a great interest of employers in low dismissal protection. In legal terms, this interest is also protected by constitutional regulations; for employers, too, protection against dismissal constitutes a restriction of their freedom to pursue a profession,Basic Law, their freedom of ownership, Basic Law and their general freedom of action, Paragraph 1 of the Basic Law.
This tension between mutual interests cannot be resolved. A “more” protection against dismissal leads directly to a greater restriction of entrepreneurial activity, a “less” protection against dismissal leads to a restriction of the legally protected legal positions of employees.
This collision of fundamental rights must be adequately balanced by the legislature. In particular, the principle of the welfare state,Paragraph 1 of the Basic Law, must be taken into account. From the principle of the welfare state, Paragraph 1 of the Basic Law, there is a need for protection against dismissal, whatever it is. The legislature therefore refers to the welfare state principle by measuring the effectiveness of dismissals against their “social justification” (cf. Paragraph 1 KSchG).
In summary, the question of how protection against dismissal should be structured requires a (political) decision as to whose interest is to be valued and how high. Naturally, this question is answered differently by the various interest groups. The arguments are very different at many different levels. The dispute is conducted in economic, political, social, family or private terms, depending on the area of interest from which the arguments are presented. An argument for or against dismissal protection is therefore always an argument for or against the interests of employers or employees.
The following arguments are made for protection against dismissal under German regulations:
- Social position : Protection against dismissal should protect the weaker contracting party and guarantee social security for a regular job.
- Long-term planning and greater social stability are created for both sides ( employer and employee ).
- A relaxation or abolition of protection against dismissal could lead to more uncertainty among employees. Domestic demand could be severely weakened for fear of their financial future .
- With stable contractual relationships, employers have a greater interest in investing in professional training for employees. Overall, this results in a larger supply of qualified workers.
- labor layoffs that are person-behavioral or operational reasons justified, makes the German Employment Protection Act to. This law does not prevent a justified dismissal, but only protects the employees from arbitrariness on the part of the employer. Example: Secretary receives notice of termination after rejecting sexual advances from her boss; the Dismissal Protection Act makes such terminations ineffective in order to prevent coercion and extortion .
- Strengthening the international competitiveness of companies: The restriction of wage competition shifts the options for action in favor of process and product improvements for companies.
- The average length of employment increases and the frequency of company changes decreases. This means that there are fewer costs for recruiting and training. The work placement effort is also reduced .
- The insider-outsider theory says that labor market regulations reduce the likelihood of an unemployed worker being employed as well as the likelihood of termination of employment, but a high degree of regulation can still be in the interests of "outsiders", for example because they are part of a household live with “insiders” or because they expect to become insiders themselves in the future. In addition, the theory assumes a homo oeconomicus who tries to maximize his income and wealth, while the homo politicus is also guided by intellectual, aesthetic, moral and ideological subjective interests.
The following labor market policy arguments are made against protection against dismissal under German regulations:
- Companies wait longer with recruitment until these are unavoidable or until a more favorable risk-opportunity ratio is given (risks here, for example, obligation to continue to work despite a deteriorated order situation; on the other hand, risk of not exhausting the market potential with too few (or overworked) employees). Fluctuations in the order situation are instead absorbed by overtime (overtime) and short-time work , which can increase costs for employers (e.g. overtime surcharges ). This leads to higher unemployment.
- Protection against dismissal leads to the refusal of companies to employ older workers, since older workers can only be dismissed with great difficulty due to social choices . The same applies to the recruitment of women of childbearing age and the severely disabled.
- The average duration of unemployment for individuals is increasing, while in countries without protection against dismissal, people are hired again relatively quickly after being laid off. So the burden of unemployment is higher for the individual.
- Youth unemployment in particular is increasing, as hiring younger workers carries too great a risk of “sitting” on an unproductive worker for a long time. According to some economists, this takes place empirically in France and South Korea , for example .
- High labor court costs: the more rigid the protection against dismissal, the more likely labor court proceedings will be initiated in the event of dismissal. This increases the implicit costs of every employee. For this reason, proponents of a more liberal employment protection law propose enabling employees and employers to forego labor court proceedings when concluding an employment contract within the framework of freedom of contract and instead agree to severance payments.
- Protection against dismissal as a location factor : Multinational companies might be more likely to create jobs in countries with little protection against dismissal than in countries with high protection against dismissal.
- Applying from a position that has not been terminated with a longer notice period is made more difficult, as new employers often do not want to wait long for a new employee.
Leases over living space
The protection against dismissal in tenancy law on living space makes it difficult for the landlord to terminate a tenancy because of "the paramount importance of the apartment as the center of human existence".
The written form is required for termination ((1) BGB). Ordinary or timely termination of a tenancy by the tenant is possible at any time without giving reasons, provided that the statutory or contractually agreed notice period is observed. The landlord can only terminate the tenancy if there is a legitimate interest ( BGB). This interest must be indicated in the termination. Possible reasons for termination are named in Section 573 (2) BGB.
- significant breaches of contract by the tenant such as delay in rent payment
- Own use of the landlord
- The termination of the realization would only be permissible under the additional (high) precondition that the owner would otherwise suffer a “considerable disadvantage” as a result of the continuation of the tenancy
When weighing up the interests of the landlord, only the reasons given in the letter of termination are taken into account (Section 574 (3) BGB).
In the event of a shortage of housing or difficulties in finding a replacement apartment, every tenant - even those who are not socially disadvantaged - can apply for an eviction period in accordance with ZPO . As a rule, three to seven months plus the notice period according to the German Civil Code are granted. However, this is at the discretion of the judge. There is no legal claim to a relevant eviction period. Since the insolvency regulation came into force on January 1, 1999, there has been protection against dismissal in the event of the tenant's insolvency , which did not exist in the old bankruptcy regulation ( InsO).
Similar to the German action for protection against dismissal , an employee or the works council can contest the dismissal by the employer in court if the dismissal is socially unjustified (Section 105 (3) No. 2 ArbVG ). In addition, certain persons enjoy special protection against dismissal, such as unionized or older employees (Section 105 (3) No. 1 ArbVG). Terminations are subject to co-determination (Section 105 (1) ArbVG). In the case of redundancies for operational reasons, a social selection must take place (Section 105 (3c) ArbVG).
The termination of employment contracts - like that of rental contracts - is regulated in the Swiss Code of Obligations (OR).
Termination for a fixed-term employment relationship
An employment relationship can be established by agreement, i. H. if both parties agree, can be dissolved at any time (Art. 115 OR, analogous). There is no special notice period. The employment relationship ends without notice due to the passage of time (Art. 334 Paragraph 1 OR).
Termination for permanent employment
- During the probationary period (the probationary period can last up to six months) the notice period is 7 days (Art. 335b OR).
For termination by the employer, the notice period is if the employment relationship in the company or company 1. has existed for two years, one month to the end of a calendar month, 2. has existed for five years, two months to the end of a calendar month, 3. eight years has existed, three months to the end of a calendar month, 4. has existed for ten years, has existed four months to the end of a calendar month, 5. has existed for twelve years, has existed for five months to the end of a calendar month, 6. has existed for 15 years, six months to the end of a Calendar month 7. Has existed for 20 years, seven months to the end of a calendar month. When calculating the length of employment, periods before the employee's 25th birthday are not taken into account. (according toAbs. 2 BGB)
In principle, it can be agreed in writing that the notice period will be changed. Except in the case of collective employment contracts and in the first year of service, however, it must be at least one month (Art. 335c Paragraph 2 OR). Notice periods of different lengths for the employer or employee are generally not permitted (Art. 335a OR).
The written form is required for termination in any case . Upon request, the terminated person must be given a written justification for the termination (Art. 335, Paragraph 2, OR) on this BGE 116 II 145
Abusive termination (Art. 336 OR)
A termination by employer and employee is abusive if it is given for the following reasons:
- because of a personal characteristic that has no connection with the employment relationship (e.g. skin color)
- if the notice of termination was given only to prevent claims arising from the employment relationship
- if a party asserts claims from the employment relationship in good faith .
Consequences of Abusive Termination
Obligation to pay compensation up to a maximum of six months' wages. The amount is determined by the court. Labor court proceedings are free for the employee.
Protection against dismissal (Art. 336c OR)
The employee may not be dismissed
- in the case of military service or community service as well as four weeks before and after
- during (through no fault of) illness or in the event of an accident in the first year of service for 30 days, in the second to fifth year of service for 90 days and from the sixth year of service for 180 days. A termination is then easily possible.
- during pregnancy and 16 weeks after delivery
- while the employee takes part in an auxiliary service abroad, provided that this auxiliary service has been ordered by a federal authority and the employer has given its consent.
A termination at the wrong time is void. If the notice was given beforehand, the notice period will be interrupted.
Termination of the employment relationship without notice
An employment relationship can be established by agreement, i. H. if both parties agree, can be dissolved at any time (Art. 115 OR, analogous). In addition, the employment relationship is through the death terminated the employee. In this case, the employer has the bereaved (338 Art. OR) a month salary after five years of service pay two months wages. In the event of (immediate) time off, the employee is released from all work obligations, but continues to receive the agreed wages until the end of the regular notice period.
Termination without notice is permissible if there is an important reason, an important reason being given if, in good faith, the continuation of the employment relationship can no longer be expected. (Art. 337 OR) The court practice has classified the following facts as important reasons: Committing a crime , disloyalty ( e.g. competition from the employer), false information when applying for a job, inaccuracies (e.g. repeated lack of punctuality despite warnings ), threats (e.g. a trade secret to reveal).
Trade unions can negotiate collective labor agreements with employers , which give employees better conditions than statutory regulations. There are also special conditions for employees of the federal administration ( Federal Personnel Act ). Although or precisely because employee protection is rather poor compared to neighboring countries, unemployment averages only around 2-3%. Strikes and labor disputes are also rare. In most cases, employers and employees, the so-called social partners, endeavor to settle labor disputes amicably through negotiations. This social partnership has a tradition; it was created in the 1930s in response to the impending World War II and has proven itself to this day. However, in 2005 and 2006 the UNIA broke the social partnership several times and, in the opinion of critics, unnecessarily endangered jobs and companies. Another special feature of Swiss labor law is that there is no statutory right to a social plan in the event of mass layoffs . If one is offered anyway, it is done on a voluntary basis or (in the case of solvent employers) on more or less gentle pressure from the trade unions or public opinion.
Since 2014 there has been a standard notice period for blue-collar and white-collar workers in Belgium. Anyone who has been employed for two years has the right to a notice period of eleven weeks. From five years of employment the period is 18 weeks and is then extended by three weeks per year of service. This regulation applies to employment contracts concluded on or after January 1, 2014.
- Termination Agreement
- Termination of Employment
- Special protection against dismissal
- Contrat première embauche
- Hire and Fire
- Federal law on the amendment to the Swiss Civil Code (Part Five: Code of Obligations) of March 30, 1911, as of January 1, 2016. Title 10: Employment contract, Art. 319 ff .; Termination of Art. 334 ff.
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- ErfK / Oetker , KSchG § 1 Rn. 5.
- cf. Prof. Wolfgang Däubler , Labor Law 2, February 2009 ISBN 3-499-61967-9 .
- Law of June 24, 1861, Art. 60, GS Prussia 1861, pp. 449, 491.
- Law on the amendment of the trade regulations, June 1, 1891 , RGBl I p. 261.
- RGBl. I, 399.
- BVerfG, decision of May 30, 1990, Az. 1 BvL 2/83, 9, 10/84, 3/85, 11, 12, 13/89, 4/90 and 1 BvR 764/86; BVerfGE 82, 126
- BRG of February 4, 1920, RGBl., 147.
- cf. the representation of the historical development of the protection against dismissal in ErfK / Oetker , KSchG § 1 Rnn. 1, 2; on the dismantling of protection against dismissal, see also ErfK / Dieterich , GG Art. 12 Rn. 37.
- ErfK / Oetker , KSchG § 1 Rn. 33.
- Federal Law Gazette I 1476.
- Federal Law Gazette I 3002.
- Art. 1 of the Employment Promotion Act 1985 (BeschFG 1985) of April 26, 1985 ( Federal Law Gazette I p. 710 )
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- ErfK / Müller-Glöge , TzBfG § 14 Rn. 1-3.
- ErfK / Oetker , KSchG § 1 Rn. 3.
- ErfK / Dieterich , GG Art. 12, Rn. 20–22 with reference to BVerfG, decision of October 19, 1993, BVerfGE 89, 214 (232) .
- ErfK / Dieterich , GG Art. 12 Rn. 38 with reference to BVerfG, decision of January 27, 1998, BVerfGE 97, 169 (176)
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- BT print. 7/2011 p. 7 on the second law on protection against dismissal for tenancy agreements for living space - second law on protection against dismissal from dismissal of 18 December 1974, Federal Law Gazette I 1974 p. 3603
- BGH: BGH, 27.09.2017 - VIII ZR 243/16 - notice of exploitation for profit optimization not permitted. BGH, September 27, 2017, accessed on September 27, 2017 .
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