🛑 Protection against dismissal
In brief
Whether a dismissal is valid first depends on whether the Protection Against Dismissal Act (KSchG) applies at all. It does if, at the time of dismissal, you have been employed without interruption in the same workplace for more than six months and the business normally employs more than ten employees.
If the KSchG applies, an ordinary dismissal needs a recognised reason: operational, conduct-related or personal. If there is no such reason or it was not weighed up sufficiently socially, the dismissal is invalid – but you must assert this in court within the time limit (see topic page "Claim against dismissal").
Step by step
- Check whether the KSchG appliesEmployed for more than six months and more than ten employees in the workplace? Only then does general protection against dismissal apply.
- Identify the reason for dismissalOperational (e.g. the post is eliminated), conduct-related (e.g. breach of duty) or personal (e.g. long-term illness) – the requirements differ.
- Calculate the notice periodThe statutory period depends on length of service (§ 622 BGB), unless the contract or a collective agreement provides something more favourable.
- Do not miss the deadline for the claim against dismissalA strict three-week period runs from receipt of the dismissal – regardless of whether the dismissal looks obviously flawed.
Deadlines
- In small businesses with ten or fewer employees, general protection against dismissal does not apply – notice periods, the AGG ban on discrimination and the principle of good faith must nevertheless be observed.
- Trainees and part-time staff count proportionately when determining the size of the business; the exact calculation is often disputed in individual cases.
- A "summary" (extraordinary) dismissal under § 626 BGB needs an important reason and must be issued within two weeks of learning of the grounds for dismissal – an incident that is merely felt subjectively to be "serious" is not automatically enough.
- Even an invalid dismissal ends the employment if you do not bring a claim against dismissal in time.
In depth · legal basis, figures and practice – for advisers and professionals
Personal and operational scope
General protection against dismissal under the KSchG requires a waiting period of six months (§ 1 Abs. 1 KSchG) and a business that normally employs more than ten employees (§ 23 Abs. 1 KSchG). For employment relationships that already existed before 1 January 2004, a transitional rule with a lower threshold of more than five employees applies to the existing staff concerned.
The three grounds for dismissal
Within the scope of the KSchG, an ordinary dismissal is socially justified only if it is based on reasons relating to the person (e.g. permanent loss of suitability), to conduct (e.g. repeated breach of duty, usually after a prior warning) or to urgent operational requirements (e.g. the job is eliminated) (§ 1 Abs. 2 KSchG). In the case of dismissals for operational reasons, a social selection among comparable employees must also be carried out according to length of service, age, maintenance obligations and, where applicable, severe disability (§ 1 Abs. 3 KSchG).
Notice periods
The statutory basic notice period is four weeks to the 15th or to the end of a calendar month (§ 622 Abs. 1 BGB). If the employer gives notice, this period is extended in stages depending on the length of employment (§ 622 Abs. 2 BGB): among others one month after two years, two months after five years, up to seven months after twenty years of service – in each case to the end of a month. Shorter periods can apply during the probation period (at least two weeks, § 622 Abs. 3 BGB) or be agreed in a collective agreement.
Extraordinary (summary) dismissal
An extraordinary dismissal is permitted only where there is an important reason that makes it unreasonable for the party giving notice to continue the employment until the end of the ordinary notice period (§ 626 Abs. 1 BGB). It must be declared within two weeks of learning of the relevant facts (§ 626 Abs. 2 BGB).
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