Recently many clients asked us for legal advice regarding unfair terminations and unjust dismissals and the according issues with their employer. In our experience, fairly often these disputes are accompanied by the employers’ misconception that Expats or even EU-citizens won’t get a lawyer involved as they should be used to a “hire and fire”-culture anyway.

As a matter of fact, Non-German residents are protected by the same fair rights and need to be treated on an equal basis as a German employee, including in startup companies. Therefore many state acts, collective agreements and the whole case law set up by the jurisdiction do apply on foreigners as well.

With this article we want to give you a short introduction into basic principles of German labour law regarding the – in our experience – tricks German employers use to fire people by circumventing legal protection measurements and provide you with resources to handle them.

Unfair Dismissals

Unfortunately, many employers try to get rid of their employees by first making them feel insecure and subsequently firing them. Happily, every termination can be legally assessed. It is our everyday practice to save our clients‘ jobs, or at least gain a profitable settlement in court.

Cancellations may be differentiated into due terminations with an upfront notice and dismissals for exceptional reasons [from one day to the other].

To become effective, any dismissal must meet at least these basic formal requirements:

• issued in written form [i.e. not as an email],
• signed duly and
• needs to be actually received by the employee.

Due terminations need to obtain a certain cancellation period. If the employer does not receive the cancellation during this defined period, the employment will go on until the cancellation becomes effective at the next possibility to terminate the contract.

Besides formal prerequisites, a termination needs to be substantiated. The depth of the justification for the dismissal distinguishes according to the different background of circumstances of each employer.

Briefly, if the Expat has worked for longer than 6 [six] months in her or his job and the business employs more than 10 [ten] people, the ‘Protection Against Unjust Dismissals Act’ [Kündigungsschutzgesetz – KSchG] does apply; whereas the number of employees of a company is calculated by adding up part-time employers [20 half-time employees equals 10 full-time employees] throughout the whole operational unit of a business [therefore f.e. subsidiaries or sister companies may be factored in].

According to the statues of the ‘Protection Against Unjust Dismissals Act’, any termination has to be justified by social aspects. A justification can stem from reasons out of the business itself, or may stem from reasons from the employer as well. This reason for justification needs to be valid. The illiquidity of the current business is no reason for a termination, while cutting down jobs because of a crisis of the company can be. But in the second case, employers are protected from a termination in so far as it needs to be equal to the other employers; f.e., younger colleagues who have worked shorter in the same field may be more appropriate to be terminated. Or: Before declaring a dismissal on grounds of conduct, the employer needs to receive a duly warning.

There is no rule of thumb to recognize an unjustified cancellation. Most of the times, our clients did follow their intuition and were almost every time right about defining the invalidity of the process.

Some employers can’t be fired at all – or at least only under very strict prerequisites. For example it is illegal to terminate any woman during their pregnancy including 4 [four] months after giving birth, members of a Works Council or Handicapped People.

Often the work contracts do provide a clause after which during a probationary period of up to 6 [six] months can be terminated with a notice period of only 2 [two] weeks. This is legal, but does not dispense the employer to issue the dismissal in a proper form.

Sometimes employers do offer a solution by granting a Termination Agreement (Aufhebungsvertrag or Abwicklungsvertrag); by signing this, the employee at least partially waives the claim for unemployment benefits, a legal assurance claim that differs from the so-called „Hartz 4“ (welfare) and therefore is equal to hard cash coming from insurance coverage you have already paid for.We do advice our clients to not sign contracts like these without having them gotten checked by a lawyer first.

After having received a termination, an employer has to take legal actions within three weeks; otherwise every termination – even the most illegal ones – become undisputable.

Conclusion

According to our experience, many of the due terminations and most of the terminations for cause are unjustified.

In case you do have the feeling your termination is based on unsubstantial reasons or your employer needed to get rid of you, we do highly recommend acquiring legal advice on the legitimacy of the termination, whereas the three-weeks deadline shall be please taken into account.

WK LEGAL is a countrywide business law firm founded in Berlin. We do offer the out-of-court legal advice as well as representation in court proceedings. WK LEGAL advices and represents employers, works councils and employees in every labour-law or employment-law concerning issues.

For a first free initial assessment, please contact us at Steinchen@WKLEGAL.de or via phone +49 (0) 30.692 051 750.