The employment protection against dismissal in Germany is a crucial aspect of labor law, providing employees with significant safeguards against unjustified termination. Understanding the nuances of this protection is essential for both employers and employees to navigate potential conflicts effectively.
General Dismissal Protection
The primary legal framework governing dismissal protection is the Kündigungsschutzgesetz (KSchG). This law applies if:
- The employee has been with the company for more than six months (§ 1 Abs. 1 KSchG).
- The company regularly employs more than ten workers (§ 23 Abs. 1 KSchG).
For a dismissal to be legally valid, it must be socially justified, which means it must fall under one of the following categories:
- Personal reasons: Such as long-term illness preventing the employee from fulfilling their duties.
- Behavioral reasons: Such as repeated misconduct despite warnings.
- Operational reasons: Such as business downturns or restructuring (§ 1 Abs. 2 KSchG).
Special Protection Categories
Several employee groups enjoy additional protection under German law:
- Pregnant Women: Under § 17 Mutterschutzgesetz (MuSchG), pregnant employees cannot be dismissed during pregnancy and up to four months post-delivery, unless in exceptional cases with state approval.
- Parental Leave: Employees on parental leave are protected from dismissal under § 18 Bundeselterngeld- und Elternzeitgesetz (BEEG).
- Severely Disabled Employees: Dismissals require prior consent from the Integrationsamt (§ 168 SGB IX).
- Works Council Members: Members have special protections under §§ 103 BetrVG and 15 KSchG, making dismissals particularly stringent and often requiring judicial consent.
Notice Periods
Notice periods in Germany are determined by the length of service:
- From 2 years of service: 1 month.
- From 5 years of service: 2 months.
- From 8 years of service: 3 months.
- From 10 years of service: 4 months.
- From 12 years of service: 5 months.
- From 15 years of service: 6 months.
- From 20 years of service: 7 months (§ 622 BGB).
Notice Periods in the Probationary Period and Employment Contracts
During the probationary period, which can last up to six months, the notice period for termination is generally two weeks (§ 622 Abs. 3 BGB). Employment contracts can specify different notice periods, but they must comply with the minimum legal requirements. Longer notice periods than those prescribed by law can be agreed upon in the employment contract, providing greater security for employees.
Termination and Settlement Agreements
In practice, many disputes are resolved through settlement agreements where the employee agrees to leave the company in exchange for compensation. Contrary to popular belief, there is no automatic right to severance pay unless specified in the contract, collective agreements, or specific company policies. The amount can vary widely, typically influenced by factors like the employee’s tenure and the circumstances of the dismissal.
Legal Support and Services
WW+KN, a Baker Tilly Company, offers comprehensive payroll services, ensuring compliance with all aspects of employment law. For legal issues, disputes, and court proceedings related to employment protection, our colleagues from Baker Tilly Legal provide expert legal advice and representation. We act as a single point of contact for our clients, coordinating seamlessly between payroll and legal services to address all your employment-related concerns efficiently.
For further inquiries or personalized advice, contact WW+KN at info@payrollgermany.de. We are dedicated to supporting you with all your payroll and employment law needs.