Germany has rather strict laws and regulations, which protect employees from wrongful dismissals. If you have received a termination of employment notice and the employment contract is governed by German law (which is more often the case many would think - click to find out why), you may want to consider challenging the termination in German court.
I. Do's and Don't's once a termination notice has been received
The two most important rules, if you would like to challenge the termination of employment in a German court, are as follows:
1. Do not waste any time!
If a decision by a German labor court is sought, the most important rule to adhere to is § 4 Kündigungsschutzgesetz. It states, that a complaint against a termination has to be filed with the labor court within three weeks after the employee has received the termination notice. While there are exceptions, as a general rule and in most cases the complaint will be dismissed, if this three week deadline is not met. This means, that once the termination notice has been received, there is little time to waste.
2. Be careful with what you sign!
As well, if you have received a termination notice, it is not advisable to sign any statement or agreement that you elect to give up your right to sue in court. If you do so, the court will very likely dismiss your case.
It is unproblematic however, if you acknowledge with your signature that you have received the termination.
II. Wrongful terminations
In Germany, a termination of employment can be unlawful for many reasons.
Most importantly, there is usually no at-will employment, which means, that the employer in Germany has no right to simply "hire and fire people", but needs to give a valid reason why the employee is being dismissed. Reasons can be either the (bad) behavior of the employee or business related reasons. Terminations without a specific reason can only be declared within the first six months of employment or if there is 10 or less people working within an operation in Germany.
If the employer cites business related reasons, it has to be explained why exactly this employee was chosen to leave and why there is no other way to keep him/her with the employer.
Other examples of an unlawful termination may be:
- the employee is being terminated due to a merger or a new contractor taking over a task ("10-people-rule" does not apply)
- the employee is pregnant ("10-people-rule" does not apply)
- the employee is disabled and no approval was sought by German authorities for termination ("10-people-rule" does not apply)
- the employee was told, that his/her job position will not be replaced and someone else is hired shortly afterwards ("10-people-rule" does not apply)
- termination is declared out of "revenge" (whistleblower, "10-people-rule" does not apply)
The termination notice has to be in writing and signed. An e-mail or even a verbal termination of employment is not valid.
III. Notice periods
Unless there were special contractual notice periods agreed upon, the notice period for an employer to terminate an employee are as follows, if the employment relationship has lasted
1. less than two years: four weeks to the 15th or the end of a calendar month
2. for two years: one month to the end of a calendar month
3. for five years: two months to the end of a calendar month
4. for eight years: three months to the end of a calendar month
5. for ten years: four months to the end of a calendar month
6. for twelve years: five months to the end of a calendar month
7. for fifteen years: six months to the end of a calendar month
8. for twenty years: seven months to the end of a calendar month
During an agreed probationary period, at most for the duration of six months, the employment relationship may be terminated with a notice period of two weeks.
IV. What can be done?
You can sue for reemployment within three weeks after you have received a termination notice. If you win, you keep your job.
You cannot sue for a severence payment, but very often this is agreed upon, if the empoyee accepts the termination. So if your goal is a severence payment, then also a law suit for reemployment has to be filed to then seek a settlement with a severance payment. A usual settlement (rule of thumb) is a severance payment of 0,5 monthly salaries for each year with the employer.
V. Attorney's fees / Fees in German labor court
I provide initial consultations and representation in labor law.
1.) According to German law I may charge up to 190 EUR + 19 % tax (226,10 EUR incl. 19 % tax) for initial consultations, if no fee is agreed upon (https://dejure.org/gesetze/RVG/34.html).
If you would like an initial consultation on your case, please write an e-mail to kanzlei(at)polishuk.de with a brief description of your case and I will send you an offer, which will - depending on the case - be between 75,- EUR and 226,10 EUR incl. 19 % tax. Please understand, that I do not provide free initial consultations in labor law (please see here why).
There is of course no charge for an initial consultation, if I represent you after the initial consultation.
2.) Attorney's fees for representation out-of-court and/or in court are based on the gross salary of the employee. Please feel free to inquire for a fee estimate.
3.) Unlike in regular German civil court there is no "winner-takes-it-all-rule" in first level labor court, which means that the parties each bear their own costs regardless of the outcome of the case. There is no court fee, if a settlement is reached or if the law suit is abandoned at an early stage.
4.) All legal fees in relation to labor law are tax-deductible expenses acc. to German tax laws. If you have a legal insurance (Rechtsschutzversicherung), then the insurance will cover all expenses, if labor law is included in your insurance policy.
VI. Contact information
Tel: 0631 / 84 27 759
Fax: 0631 / 27 75 73 009