Right of termination: What applies to whom?

The right of termination is a central part of employment law and regulates the termination of employment contracts. Both employer and employee can give notice of dismissal under certain conditions. But what are the legal requirements, and what must be considered when terminating? This blog article provides you with a comprehensive overview of termination law — from types of termination to protective regulations.

What is a termination?

A dismissal unilaterally terminates an employment relationship. It can be carried out either by the employer or the employee. In this case, between Ordinary Termination (subject to compliance with the notice period) and Extraordinary termination (without notice, for serious reasons). The notice periods may be regulated by law, collective or contract.

Special Dismissal Protection Regulations

The right of termination protects certain groups of people from termination or restricts it. Here is an overview of important special regulations:

🤰 Pregnant women and mothers: Protection against dismissal during pregnancy and up to four months after delivery (§ 17 MuSchG).

👶 Parental Leave: Protection against dismissal during and up to eight weeks before the start of parental leave (§ 18 BEEG).

♿ severely handicapped: Approval from the Inclusion Office required (Section 85 SGB IX).

🏛️ Works Council Members: Extraordinary termination only with the consent of Works Council (§ 15 KSchG).

📑 Fixed-term contracts: Termination is only possible if this has been expressly agreed (§ 15 TzBfG).

Dismissal Protection Act — Important Information:

According to § 1 KSchG, dismissal is socially unjustified if it is not based on the employee's conduct or personal circumstances or on urgent operational requirements. In such cases, the termination is ineffective. According to Section 1 (3) of the Consumer Protection Act, social aspects such as length of service and age must be taken into account in the case of redundancies.

The employee has a severance payment claim in accordance with Section 1a KSchG if he does not file an action in the event of termination for operational reasons. A notice of amendment in accordance with § 2 KSchG is also possible if the employee accepts changed working conditions. In the event of an objection, the works council may seek an agreement between employer and employee in accordance with Section 3 KSchG.

Reasons for termination: When is termination legal?

When that Dismissal Protection Act (KSchG) Applies, the employer requires a reason for dismissal. There are three main categories:

1. Person-related termination
The reasons lie in the person of the employee, e.g. in the event of permanent illness or loss of ability to work.

👉 Note: Operational integration management should be carried out before dismissal due to illness (Section 167 SGB IX).

2. Behavioral termination
If the employee violates operational rules or obligations, dismissal may be justified.

👉 important: A prior warning is usually required.

3. Operational termination
This happens when a business decision makes the workplace superfluous. The employer must carry out social selection in order to avoid social hardship.

Notice periods for employees and employers

The statutory notice period for employees is in Section 622 of the Civil Code (BGB) defined. Accordingly, an employee can give notice of four weeks to the 15th or the end of a calendar month. However, this period is equivalent to Exactly 28 days And not a full month. In Employment Contracts or Collective agreements Different regulations may be made which provide for a longer or shorter period of time.

Notice period for employers

The provisions of Section 622 of the German Civil Code also apply to termination by the employer, but with a special feature: The notice period is extended as the employee has been with the company. During the trial period, which can last up to six months, the period is just two weeks. Thereafter, the following deadlines apply:

Notice period after parental leave

When an employee in Parental Leave Is, the usual notice periods apply, unless the employment contract contains different regulations. The termination can be given four weeks before the 15th or at the end of the month. However, the termination should only take effect after the end of parental leave, there is an extended notice period of three months, in accordance with the Federal Parental Allowance and Parental Leave Act (BEEG).

Dismissal by employee

Termination requires care and compliance with legal requirements. It is important that the appropriate notice period is observed. The termination must be made in writing, signed by hand and contain basic information such as name, address and a current date. If you do not hand over the cancellation in person, access should be ensured by other means, e.g. by registered letter — ideally with a confirmation of receipt.

After the termination, it is important to clarify a few points:

• Degree in the company: Ask for a qualified job reference in good time and organise a smooth handover of your tasks.
• Personnel planning: Secure your documents, check insurance policies and reconsider your financial situation.
• refocusing: Use the time for further education, update your resume and start your job search if there is no new job yet.

Dismissal by Employer

A dismissal by the employer must meet certain legal requirements. These include:

• written form: In accordance with Section 623 BGB, the termination must be made in writing and signed personally by the employer or an authorized representative. Cancellations by e-mail or fax are ineffective.
• Receipt of notice: The notice of termination must be received by the employee and access should be verifiable, ideally by a messenger or witness who can testify to both the handover and the content.
• Indication of the date of termination: The dismissal must clearly state the end of the employment relationship.
• No condition: Termination must not be subject to conditions.
• Obligation to state reasons: A statement of reasons is not required in the letter of termination, but there must be a legally recognized reason for termination when applying the Dismissal Protection Act.
• Employee reporting obligation: The employer must inform the employee of his obligation to report to the Employment Agency in order to avoid disadvantages in unemployment benefits.

Special rules apply in the event of several cancellations: In the event of a mass dismissal, the employer is obliged to inform the Employment Agency in advance in accordance with Section 17 KSchG. The cancellations are ineffective if this notification is omitted. The Works Council must also be involved and its opinion must be submitted to the agency. Extraordinary termination, which immediately terminates the employment relationship, is only possible in exceptional cases and requires good cause. This exists when the continuation of the employment relationship is unreasonable for the employer. Here, too, more lenient means, such as warnings, must be examined before the termination is given.

Conclusion

The right of termination requires careful compliance with legal requirements. Employers should document dismissals well and check whether protective regulations apply. Employees have rights that they can enforce in the event of ambiguities or unjustified dismissals.

🔎 Tip 🔎

In case of doubt, advice from a specialist labor law lawyer can help to minimize potential risks.