Dismissal Protection Act

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Basic data
Title: Dismissal Protection Act
Abbreviation: KSchG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Employment Law
References : 800-2
Original version from: August 10, 1951
( Federal Law Gazette I p. 499 )
Entry into force on: August 14, 1951
Last revision from: August 25, 1969
( Federal Law Gazette I p. 1317 )
Entry into force of the
new version on: 		1st September 1969
Last change by: Art. 4 G of July 17, 2017
( Federal Law Gazette I p. 2509, 2511 )
Effective date of the
last change: 		October 10, 2017
(Art. 8 G of July 17, 2017)
GESTA : G041
Weblink: Text of the KSchG
Please note the note on the applicable legal version.

The German Dismissal Protection Act (KSchG) restricts the freedom of termination of contracts with a longer term ( long-term obligations ) , which exists in civil law, to socially justified dismissals in favor of the employee upon termination of employment (see also Protection against dismissal ).

Requirements for the application

number of employees

So-called small business clause ( reverse conclusion from § 23 Abs. 1 S. 3 KSchG)

Since January 1, 2004, a company has generally had to employ more than ten workers in order for the statutory protection against dismissal to apply.

Up to December 31, 2003, a number of more than five (arithmetically at least 5.25) employees was sufficient for the Employment Protection Act to apply. Anyone who had protection against dismissal under this old regulation on December 31, 2003 will continue to retain this protection against dismissal if more than five "old employees" are still employed in the company - at the time of the notice of dismissal - (reverse conclusion from Section 23 (1) sentence 2 KSchG). However, if such “old employees” leave the employment relationship and this threshold value falls to five or below, all others lose their previous protection against dismissal. Then the small business limit of more than 10 employees is decisive according to the new legal situation.

Part-time workers

They are used to calculate the number of employees in accordance with Section 23 (1) sentence 4 KSchG is taken into account as follows

  • up to and including 20 hours / week with a factor of 0.50
  • up to and including 30 hours / week with a factor of 0.75
  • over 30 hours / week with a factor of 1.0.

With this method of counting, the value of mathematically 10.25 employees to be taken into account is sufficient for the law to apply; Trainees, managing directors or the company owner are not taken into account.

Temporary workers

When calculating the size of the company, temporary workers employed in the company must also be taken into account if their deployment is based on a generally existing staffing requirement.

Waiting period: six months of employment

The employment relationship must last longer than six months ( Section 1 (1) KSchG) for the protection against dismissal to take effect.

This so-called waiting period according to the Dismissal Protection Act should not be confused with the probationary period according to § 622 BGB . The agreement of a trial period only has an impact on the length of the relevant notice period: this is then reduced from “four weeks to the 15th” or “to the end” of a calendar month to two weeks.

When calculating the waiting time of Section 1 (1) KSchG, Section 193 BGB does not apply. The waiting time can therefore end on a Saturday, Sunday or public holiday and is not extended to the next working day.

Reasons for termination

Section 1 (2) KSchG provides forthree reasonsfor termination :

  • personal,
  • behavioral,
  • operational.

Termination for personal reasons

In the case of personal termination, the reasons for the termination of the employment relationship lie with the employee. Termination for personal reasons is possible if the employee is no longer able to perform the work. There may be technical, personal or health reasons for this. The most frequent case of personal termination is termination due to a long-term illness or frequent short illnesses that lead to incapacity for work and will continue to do so in the future. In contrast to behavior-related termination, the employee is generally not at fault for personal termination . Termination for personal reasons is not socially detrimental under the following conditions:

  • It must be established that the employee will no longer be able to meet his contractual obligations in the future (negative forecast for the future).
  • This affects the employer's essential interests.
  • A weighing of interests shows that the legitimate interests of the employer are more worth protecting than the interests of the employee.

Before a person-related termination, the employer must check whether a transfer or a termination notice is possible instead.

Behavioral termination

In the case of conduct-related termination , the reason for termination is misconduct on the part of the employee. The prerequisite for their legality within the meaning of the Dismissal Protection Act is that the employee has violated a contractual obligation significantly - usually culpably -, there is no reasonable possibility of other employment that reliably excludes future disruptions, and the termination of the employment relationship is worthwhile considering the interests of both parties to the contract and appears appropriate. Often, but not necessarily, the behavior-related termination is pronounced as an extraordinary termination without notice.

The employer who gives a behavior-related dismissal must usually have warned the employee beforehand about a similar breach of duty . The warning is unnecessary if the misconduct is so serious that the employee had to be clear from the outset that this behavior will not be tolerated under any circumstances.

A behavior-related termination occurs, for example, if the employee has committed a theft or expense fraud, is often late, has not reported or proven his incapacity for work, has taken his vacation without authorization, has “turned blue” or his work performance is poor. Often, alcohol and drug use are also mentioned as behavior-related reasons for leaving. If the employee is addicted and therefore cannot control his behavior, only a personal termination can be considered.

According to Section 159 (1) No. 1 SGB III, a behavior-related dismissal that is legally correct leads to a blocking period for unemployment benefit if the employee has caused unemployment willfully or through gross negligence.

Termination for operational reasons

One speaks of a termination for operational reasons if objective reasons lead to an entrepreneurial decision, which in turn leads to the loss of the job of the employee concerned or of a plurality of jobs. A basic distinction must be made here between reasons that have an external effect on the company (for example, loss of sales, loss of orders) and reasons that are brought about by the company itself (organizational decisions, restructuring, plant closure). The entrepreneurial decision itself is only examined by the labor courts for “obvious arbitrariness or irrelevance”.

For operational reasons, the social selection according to § 1 Abs. 3 KSchG must be observed. Several comparable employees must terminate the employee who has the best social data, i.e. who is least affected by the consequences of the termination. Since the revision of the Dismissal Protection Act from January 1, 2004, only the length of service, age, existing maintenance obligations and any severe disability may be used as criteria for social selection.

A special form of termination for operational reasons is the so-called Orlando termination .

Term of action

The Employment Protection Act statuiert in § 4 Consumer Protection Act for unfair dismissal claim a limitation period of three weeks. However, this period of action is not a precondition for admissibility , but a substantive preclusion . The termination is deemed to be legally effective from the start if it is not attacked by a lawsuit at the labor court within three weeks of receipt (fiction of effectiveness of Section 7 KSchG). The action must therefore be rejected as unfounded, but not as inadmissible, if the three-week period has been exceeded. This preclusion has been in effect since January 1, 2004 for all dismissals and all reasons for ineffectiveness, so it must be observed in any case, even if the Dismissal Protection Act does not apply to the employment relationship (example: termination of a pregnant woman in a small business, compare notice periods in labor law ).

Exceptions apply, however, to terminations that are not in writing or that have not been given in due time, even if the employee does not wish to invoke the ineffectiveness of the termination: If the termination is not expressed in writing, contrary to the formal requirement of Section 623 , its ineffectiveness may be even after the three-week period has expired, an action can be taken at the labor court. The same applies in the event that the applicable notice period has not been observed, but the notice of termination - possibly by way of interpretation - indicates that the terminating party wanted to declare an ordinary notice of termination while observing the period of notice to be objectively observed. If, on the other hand, a notice given with a notice that is too short cannot be interpreted as one with the legally required period, the failure to comply with the notice period must be asserted in court within the three-week period of § 4 sentence 1 KSchG.

The filing of a lawsuit for such reasons, which exceptionally do not fall under § 7 KSchG, may u. U. due to other lis pendens acc. Section 46 (2) sentence 1 ArbGG in conjunction with Section 261 (3) no. 1 ZPO the admissibility of the action is not applicable if dismissal protection action or action to establish the existence of the employment relationship has already been brought .

Change notice

A notice of change is given if the previous employment relationship is terminated extraordinarily (usually without notice) or ordinary (subject to the minimum notice period) and at the same time the continuation of the employment relationship (in the case of ordinary notice of change: after expiry of the notice period) is offered under changed conditions ( compare § 2 KSchG). Here, too, the Dismissal Protection Act requires the existence of grounds for termination within the meaning of Section 1 (2) KSchG for the effectiveness of the change notice and compliance with the three-week period for legal action for a legally relevant complaint.

The employee can either reject the change offer and sue against the change notice. If he then loses the process, the employment relationship is terminated; If he wins, he has a right to continued employment under the old contractual conditions.

However, he can also accept the change in the contractual conditions "subject to their social justification" and have the change reviewed by a court within the three-week period of action (with a so-called dismissal protection suit , sometimes also called an amendment protection suit). This reservation must be declared to the employer (not to the court!) Within the notice period, but no later than three weeks after receipt of the notice of termination. If the reservation is declared to the employer within the (maximum) three-week period and an action is also brought to the labor court within this period, the court will examine the social justification of each individual change. If it is missing (even for a single amendment to the contract, be it the most incidental), the entire termination of the amendment is not socially justified. The employee then has a right to continued employment under unchanged contractual conditions. If, on the other hand, the change notice is socially justified, i.e. if the employee loses the process, he must continue to work under the changed conditions, but keeps his job. The declaration of the reservation therefore reduces the risk of job loss for the employee to zero. However, if the employee declares the reservation, they must work under the changed working conditions for the duration of the legal dispute after the period of notice has expired.

literature

  • Federal Ministry of Labor and Social Affairs (Ed.): Protection against dismissal. Everything you need to know . Bonn 2017 (80 pp., Bmas.de [PDF; 339 kB ; accessed on February 28, 2019]).
  • Wilfried Berkowsky: The personal and behavioral termination . 4th edition. CH Beck, Munich 2005, ISBN 3-406-52237-8 .
  • Michael Kittner, Wolfgang Däubler , Bertram Zwanziger (eds.): KSchR - Protection against dismissal. Notice of termination and other forms of termination of employment. Commentary for practice . 8th, revised edition. Bund-Verlag, Frankfurt a. M. 2011, ISBN 978-3-7663-3998-0 .
  • Bertram Zwanziger, Silke Altmann, Heike Schneppendahl: Dismissal Protection Act. Basic comment with subsidiary laws . 2nd, revised edition. Bund-Verlag, Frankfurt a. M. 2009, ISBN 978-3-7663-3880-8 .
  • Müller, Stefan: The behavior-related termination - guidelines for practice . 1st edition. Luchterhand, Cologne 2013, ISBN 978-3-472-08363-4 .
  • Roland Schwarze, Mario Eylert, Peter Schrader: Dismissal Protection Act. Comment . 1st edition. CH Beck, Munich 2011, ISBN 978-3-406-54907-6 .
  • Gregor Thüsing , Helga Laux, Mark Lembke (Eds.): Dismissal Protection Act - Practical commentary on the KSchG and related regulations with design information and examples . 4th edition. Haufe, Freiburg 2018, ISBN 978-3-648-11063-8 .
  • Pauly Stephan, Osnabrügge Stephan (Hrsg.): Handbuch Kündigungsrecht . 3rd revised edition. Deutscher Anwalt Verlag, 2010, ISBN 978-3-8240-1022-6 .

See also

Web links

Individual evidence

  1. ↑ Moll, in: Ascheid / price / Schmidt: right of termination, Great commentary on the entire right of termination of employment , 4th edition 2012, the Consumer Protection Act § 23, para. 27 f.
  2. ↑ Federal Labor Court, judgment of January 24, 2013, 2 AZR 140/12, see also press release of January 24, 2013
  3. ↑ BAG, judgment of October 24, 2013 - 2 AZR 1057/12 - NZA 2014, 725
  4. ↑ Britta Beate Schön: When are personal dismissals legal. In: Finanztip. March 3, 2014, accessed April 3, 2017 .
  5. ^ Federal Labor Court, judgment of September 8, 2011 - 2 AZR 543/10
  6. ^ Federal Labor Court, judgment of December 15, 2005, 2 AZR 148/05
  7. ↑ Federal Labor Court, judgment of September 1, 2010 - 5 AZR 700/09