The law firm white ip in Dresden will be happy to advise you on the prospects of success of a dismissal if you as an employer intend to give notice of dismissal or if you as an employee have received notice of dismissal from your employer.
Our lawyers from the “Employment Law Team” have a high level of expertise due to their many years of experience in the areas of dismissal and protection against dismissal in the context of employment law and a large number of dismissal protection proceedings.
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!
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The termination of an employment relationship requires compliance with certain formalities in order to be effective. If these formalities are not complied with, the termination is invalid in any case, regardless of whether the termination would otherwise be justified.
Notice of termination must always be given in writing, i.e. with a handwritten signature. Termination by email, verbally or via WhatsApp is therefore invalid in any case.
Likewise, notices of termination may be invalid due to a lack of knowledge of the power of representation if, for example, they are rejected with i.A. or i.V.. Of course, this does not apply if the power of representation is known, for example because it is the personnel manager or the power of attorney is attached to the notice of termination.
If “only” the notice period has not been observed, the Dismissal Protection Act naturally also grants the employee protection against dismissal for failure to observe the proper notice period. As a rule, however, case law simply reinterprets a dismissal that is not within the notice period as a dismissal within the notice period. This therefore does not lead to the invalidity of the termination as a whole.
It is important to know that the Dismissal Protection Act largely does not apply to so-called small businesses. Small businesses are companies that regularly employ no more than 10 employees. However, not every employee counts as 1 under the Dismissal Protection Act. Rather, employees with an employment period of up to 20 hours only count as 0.5 and those with more than 20 and up to 30 hours as 0.75. This results from Section 23 of the Dismissal Protection Act.
In addition, the Dismissal Protection Act is only applied as soon as the employment relationship has existed for more than 6 months . In the first 6 months, the employer can therefore also terminate the employment relationship without cause.
Contrary to a still widespread misconception, dismissal during illness is permissible under the current Dismissal Protection Act. On the contrary, a long-term illness or a number of short-term illnesses can even constitute grounds for dismissal for personal reasons. Dismissal due to illness may therefore be permissible under certain additional conditions. A ban on dismissal during illness only existed under the GDR’s dismissal protection law.
The means prescribed by the Dismissal Protection Act to take action against a dismissal is the so-called dismissal protection action. It should be noted that an action for protection against dismissal must also be brought against obviously ineffective dismissals, as otherwise the dismissal is deemed to have been effective from the outset after 3 weeks.
Disputes often arise between employees and employers, particularly in the context of the termination of employment contracts, which, due to the usually very emotionally charged situation on at least one of the two sides, often end up before the labor courts. As a rule, there are only exceptions if an employer’s dismissal has been planned and discussed with a lawyer in advance and thus ultimately has “hand and foot”. However, even this is no guarantee that an action will not be brought, but only that the action will not be successful.
An action for protection against dismissal is an action that challenges the effect of a notice of dismissal on the existence of the employment relationship; in other words, if the employee wins the action for protection against dismissal, their original employment relationship with the employer must be reinstated with all the corresponding conditions.
With such an action, all objections to the validity of a termination can be raised, regardless of whether they are of contractual, collective bargaining, statutory or works constitution origin.
A special feature is the three-week period stipulated in Section 4 of the Dismissal Protection Act (KSchG ). According to this, the complaint must be filed within three weeks of receipt of the written notice of termination. Receipt is not necessarily the time at which the employee received knowledge of the dismissal, but the time at which the dismissal came into the employee’s “sphere of influence”. For example, posting it in the letterbox is also sufficient. If the complaint is not subsequently filed within the deadline, the dismissal is deemed to be effective from the outset in accordance with Section 7 of the Dismissal Protection Act.
Our Dresden lawyers from the “Employment Law Team” will be happy to assist you with the examination of formal errors in the notice of termination, the calculation of the notice period, as well as legal representation in dismissal protection proceedings.
In principle, the above remarks on an action for protection against dismissal apply equally to an action for protection against change, which is available as a reaction to a dismissal with notice of change. Here too, the response period is three weeks. The process before the labor court also largely corresponds to that of normal dismissal protection proceedings.
However, the biggest and most significant deviation from normal dismissal protection proceedings is the initial situation, namely the existence of a dismissal with notice of change.
This means that the employer has given notice of termination but at the same time offered the employee the conclusion of a new employment contract. The employee now has various options for responding in accordance with the Dismissal Protection Act, whereby the three-week period must also be observed in this respect.
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- He can either refuse to conclude the new contract and either accept the termination or take legal action against it. In this case, it is a normal action for protection against dismissal.
- He can also sign the new employment contract and accept the termination. In this case, there is no dispute between the parties, but the employee commences his new employment in accordance with the amended employment contract.
- Ultimately, the employee still has the option of signing the new employment contract and accepting the termination subject to the so-called reservation of social justification. The employee must then file an action for protection against change, also within the three-week period. As part of this action, not only are the reasons for the dismissal reviewed, as in normal dismissal protection proceedings, but in a second stage it is also examined whether the changes with which the employee is confronted under the new contract are acceptable. For example, a reduction in salary as part of a notice of change due to the employer’s difficult economic situation may constitute grounds for dismissal for operational reasons. If the amount of the wage now offered by the employer does not correspond to the minimum wage law of currently €12.41 per hour (2024), this change is nevertheless not to be accepted by the employee and the employer’s dismissal is therefore invalid. In this case, the employee must continue to be employed under the old conditions (until a new, this time effective, notice of change is given).
If, on the other hand, the employee loses the case, the employment relationship will not continue under the old conditions, but the employee is at least protected by the fact that he has signed the new employment contract and this employment relationship will continue.
Of course, the attorneys from the “Employment Law Team” at white ip | Patent & Legal in Dresden are also available to assist you with the examination and representation in the context of a notice of dismissal.
Even if it was mentioned at the beginning that the Dismissal Protection Act does not apply to small businesses, employees are not completely without rights in this respect. This is because even in a small company, the employer needs good cause for extraordinary dismissal, for example. In addition, the employer must observe certain minimum standards, which can also lead to the invalidity of the dismissal in small companies due to a breach of good faith and morality.
For example, it is highly likely to be ineffective if the employer hires a new employee for a position in which an employee is already employed and then terminates this employee without cause within the meaning of the Dismissal Protection Act, even though the employee has already been with the company for 20 years.
In such exceptional cases, ordinary dismissal in a small company may also be invalid according to case law. The same applies, for example, to retaliatory dismissals by the employer, e.g. because the employee has asserted their claim to minimum wage.
It is relatively difficult to assess whether a dismissal in a small business is invalid or not and it is not uncommon for borderline cases to arise. Knowledge of the relevant case law is a prerequisite for being able to make a reliable prognosis. Our lawyers from Dresden, who specialize in employment law, will be happy to provide you with an initial assessment and possible subsequent representation in dismissal protection proceedings.
We recommend that you seek legal advice when planning a termination.
Our employment law lawyers will be happy to draw up a contract for you that reflects your interests in a legally secure manner.
Contact us, our lawyers will be happy to advise you on this and other employment law issues.
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