While a termination is only declared unilaterally, both the employee and the employer agree to the termination of the employment relationship through the termination agreement.
It enables employers to structure the terms of separation and avoid the lengthy and costly legal disputes that could arise in the event of termination without mutual agreement.
Whether the contract is more advantageous for the employer or the employee can depend heavily on the individual circumstances and the ability to negotiate.
Our employment lawyers will be happy to draw up a contract for you that reflects your interests in a legally secure manner.
Our employment and contract law team draws up and reviews termination agreements, including for effective clauses, severance amounts and grounds for rescission.
We take over or support negotiations with contractual partners on the terms of termination.
If you are seeking or have received a declaration of avoidance, we will advise you on this and check the grounds, form and deadlines in particular.
The attorneys at white ip | Patent & Legal represent clients throughout Germany in out-of-court settlements and in court proceedings.
We can advise you on all issues relating to the rescission or termination of employment contracts and examine the legal prospects of success of your plans.
Our team is available for you by telephone on 0351 -896 921 40 or by e-mail at recht@white-ip.com.
We are available for consultations in Dresden, Leipzig, Berlin, Cologne, Munich, Hamburg and beyond. Contact us with your request and your wish for an online or on-site consultation! We will find an appointment together.
A termination agreement, also known as a severance agreement, terminates the employment relationship between the employer and employee in the same way as a notice of termination. It enables the employer and employee toterminate the employment relationship by mutual agreement either immediately or within a period of time .
The content of the termination agreement can be freely determined. Provisions are usually made regarding
- Termination date of the employment relationship
- Paid leave of absence from work with deduction of remaining and annual leave
- Overtime and vacation pay
- on a severance payment and, if applicable, a severance payment in the event of earlier termination (so-called sprinter clause)
- outstanding remuneration claims including any bonuses
- Job reference
- Return or handover of work equipment Working papers, certificate of employment if applicable
- Confidentiality clause
- Waiver of action and waiver of the right to a cooling-off period
- Notes on tax and social law implications
- Effects on the company pension scheme
- Equalization clause
- Exclusion clauses and withdrawal
A settlement agreement regulates how the employment relationship is terminated. A termination agreement, on the other hand, stipulates that an employment relationship will be terminated.
In contrast to the termination agreement, the settlement agreement presupposes that the contract has already been terminated (termination) or is about to be terminated (fixed term) and therefore only serves to settle the contractual relationship.
No, an employee is generally not obliged to agree to a termination agreement. Mutual agreement on all content is required, as a termination agreement is an agreement between the employer and employee that terminates the employment relationship by mutual consent.
No, the legally required written form according to § 623 BGB must be observed.
Premature termination of the employment relationship is possible by concluding a termination agreement. However, there is a risk of a blocking period being imposed, which the employer must generally point out. If the relevant (contractual, statutory, collectively agreed) notice period is not observed, the entitlement to unemployment benefit is generally suspended from the date of termination until the date on which the regular notice period would have expired. If an employee leaves their employment prematurely, they may be in breach of contract. If the employer suffers damage as a result, he can generally demand compensation.
No, this is not a reason for contestation according to case law. If the employee is unaware of the scope of his or her protection against dismissal, there is no right to challenge the error.
Without the granting of a right of revocation or withdrawal or a “cooling-off period” in the employment contract or collective agreement, termination agreements cannot be revoked. In particular, the employee cannot revoke a termination agreement signed on the employer’s premises due to a so-called doorstep transaction.
Termination agreements may contain a condition precedent. However, this is only permissible to the extent that an employment contract under the same condition would also be permissible without undermining the statutory protection against dismissal. Furthermore, an objective reason regulated by law in Section 14 (1) sentence 2 TzBfG is required.
If an employer has induced an employee to conclude a termination agreement with them in order to avoid a dismissal for operational reasons and, in the period between the conclusion of the termination agreement and the termination of the employment relationship, an unforeseen opportunity for continued employment arises for the employee, the termination agreement must be adjusted. The contract may also be amended in the form of reinstatement.
If an employer wants to avoid this, a claim for reinstatement must be expressly excluded in the termination agreement.
In the event of a dispute, the employer must demonstrate and prove that a foreign-language employee was sufficiently proficient in German to have at least understood the content of the declaration.
Since an employer usually makes a written termination agreement offer to a foreign employee in German and the employee expresses his consent by signing it, in the event of a dispute the employer is obliged to present and prove those circumstances which show that the foreign employee has at least understood the wording of the declaration and therefore has sufficient command of the German language in this respect.
It is sufficient for an employer to be able to demonstrate and prove, in particular through witnesses, that the general communication with the employee in German has so far been problem-free. However, if the employer is unable to meet its burden of presentation and proof, a termination agreement has not even been concluded due to the lack of effective receipt of the offer.
If you as an employer are considering terminating an employment relationship by means of a termination agreement, it makes sense to consult a lawyer.
The white ip | Patent und Legal team can help you understand all legal aspects and ensure that the contract complies with legal requirements. In addition, we can assist you in the negotiations to ensure that your interests are adequately represented. We not only focus on avoiding legal risks, but also consider tax implications, intellectual property (IP) aspects and the safeguarding of confidential information.
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