Reasons for termination without notice and ordinary termination
You have received a notice of termination or a termination agreement?
Make an appointment now with your specialist lawyer online or on site in Frankfurt, Mannheim or Karlsruhe.
Phone 0621 / 167 700 70
(valid for all locations – consultations by phone, online or on site possible)
(valid for all locations – consultations available by phone, online or on-site)
What is the significance of the reasons for termination?
The reason for termination plays a major role. However, not every reason is suitable to justify a termination.
The reason for termination must always be carefully scrutinized, because a missing or unrecognized (or. unlawful) reason makes a termination invalid. Nevertheless, the reason for termination is only one of several prerequisites for the effectiveness of a termination. There are numerous other circumstances that play a role in the question of whether a termination is effective.
Within the framework of the Protection Against Dismissal Act (KSchG), special requirements are also placed on the reason for dismissal.
The legislator has set out the grounds for termination under the KSchG in a single paragraph (Section 1 of the KSchG). The question of how these reasons are to be interpreted and what conditions are to be attached to them has been left to legal practice.
Regardless of whether you have received a termination without notice or an ordinary termination (or whether such a termination is imminent): the reason for termination plays a major role.
For those affected, the reason is of great importance because it explains ‘why’ the termination occurred.
Not every reason is suitable to justify a notice of termination. The standard applied to the justification of a termination is not the same for every type of termination:
- In the case of termination without notice, which is the most serious action taken by an employer, the reason for termination plays the central role. Termination without notice requires a much more serious reason than z.B. The ordinary termination of an employee within the probationary period
- Ordinary terminations within the scope of the Dismissal Protection Act also require a substantial reason (namely operational, personal or behavioral) that ‘socially justifies’ the termination
- Ordinary terminations outside of the Protection Against Dismissal Act, on the other hand, generally do not require justification as to the reason.
How important is the reason for termination for the effectiveness of the termination??
The reason for termination must always be carefully scrutinized, because a missing or unrecognized (resp. unlawful) reason makes a termination invalid.
Nevertheless, the reason for termination is only one of several requirements for a termination to be effective. There are numerous other circumstances that play a role in the question of whether a termination is effective: The best reason is of no use if other conditions for effectiveness have not been met.
Must the reasons be stated in the notice of termination??
Basically no. As a rule, the reasons for dismissal do not have to be stated in the letter of dismissal, unless the statement of reasons is required by (collective bargaining) agreement, by works agreement or by law (e.g.B. in the case of termination of women who are covered by the Maternity Protection Act or of apprentices).
Therefore, the reasons for termination are usually not mentioned in the termination notice.
How do I find out the reasons for my dismissal??
If the reasons for termination are not stated in the letter of termination and were not communicated verbally, the employer can be requested to state the reasons subsequently.
An obligation of the employer to state the reasons arises directly from the law in the case of termination without notice. The KSchG, on the other hand, only requires the employer to give reasons for social selection in the case of ordinary dismissals for operational reasons. However, a further claim may arise as a secondary obligation from the employment contract.
If the employer does not comply with this, however, the termination is not invalid. At most, a claim for damages may arise.
Because of this relatively weak sanction and above all because of the short time between the receipt of the notice of termination and the end of the period for filing an action (3 weeks), the question of the reason for termination is usually only clarified in the context of an action for protection against dismissal. In such a lawsuit, the employer must explain in detail the important reason for a termination without notice and the social justification for an ordinary termination in accordance with the KSchG (German Unfair Dismissal Act).
In the case of unclear or not fully known reasons, it is therefore generally recommended to file a lawsuit.
If there is a works council and it has objected to the termination, the employer must attach the works council’s statement to the termination notice.
The reasons for an extraordinary termination/termination without notice
Termination without notice requires an ‘important reason’. The dismissal stands or falls with the existence of this good cause.
Good cause shall be deemed to exist if the party giving notice of termination is prevented from complying with the ordinary period of notice (or. waiting for the end of a fixed-term employment relationship) is unreasonable.
What are the grounds for termination in the case of ordinary termination??
The reasons for an ordinary termination can be manifold: They can result from the economic situation of the employer or from circumstances that lie in the area of the employee.
However, not every reason is recognized by the law:
- An employer may indeed give notice if a reduction in the workforce is necessary – but he may not give notice arbitrarily because he "does not like" this or that employee
- An employer may terminate an employment contract if the employee is no longer able to fulfill his or her work duties – but not because the employee is "too old" for him or her is
- An employer may terminate an employee’s employment if the employee’s conduct gives cause for complaint – but not because the employee has exercised his or her rights in a permissible manner in the process.
The reason for an ordinary termination must therefore always be questioned and checked for its admissibility.
The significance of good cause under the German Dismissal Protection Act (Kundigungsschutzgesetz)
Within the framework of the Dismissal Protection Act (KSchG), special requirements are also placed on the reason for dismissal.
The legislator has set out the grounds for termination under the Protection Against Dismissal Act (KSchG) in a single paragraph (§ 1 KSchG). The question of how these reasons are to be interpreted and which conditions are to be attached to them is left to legal practice.
As a result, there is an immense casuistry (case law) and countless legal ‘opinions’ on which conditions must be met and which circumstances must be taken into account in order for the reason to be recognized.
Behind all this are numerous follow-up questions that are dealt with in thousands of court decisions, legal commentaries and other legal literature. Here the devil is sometimes only in a small detail.
And the following applies in principle: The employer must explain and prove the conditions and circumstances that make ‘his’ termination effective. An employee is therefore usually in the better position.
Please note: This is only about the reason for termination, not about other issues. Even if there were proper and justifiable grounds for the termination in this example, the termination may be invalid because it violates the other requirements of the KSchG (z.B. social selection) or other legal requirements (z.B. Works Council consultation, formal requirements).
Reasons for termination under the German Dismissal Protection Act (Kundigungsschutzgesetz)
According to the Dismissal Protection Act, the reasons are classified as follows:
- For operational reasons
- behavioral reasons and
What is a termination for operational reasons?
Termination for operational reasons is when there are urgent operational requirements that prevent the continued employment of the employee. The reason for termination therefore lies in the sphere of the employer (and not with the employee).
Such operational reasons may include: job cuts, restructuring, reorganization or discontinuation of production, closure of departments or operations, etc.
As a rule, economic considerations are behind the decision to terminate for operational reasons.
The law attaches extensive requirements to such terminations, which can be summarized in a simplified manner as follows:
- There must be a so-called. there must be an entrepreneurial decision, i.e. a concept for adjusting the work requirement, which must not be unobjective, unsuitable or arbitrary
- There must be operational reasons (e.g.B. rationalization measures, plant shutdown, lack of orders, decline in sales)
- One or more jobs must have been eliminated as a result of, or. there is a corresponding prognosis that they will cease to exist
- The operational reasons must present themselves as urgent – in particular, there must be no other possibility of continued employment for the employee to be terminated
- The termination must not be disproportionate, which is tested by weighing the interests of the employer in the termination with the interests of the employee in the continuation of his employment relationship
- Even if all the above criteria have been met, the employer may not arbitrarily select who is to be terminated. Instead, the employer must make a selection based on social criteria (social selection).
What is a termination for behavioral reasons??
Ordinary termination for behavioral reasons and termination for cause (without notice) have a lot in common: the main point is that the employee is being terminated because his or her behavior is objected to.
The prerequisite is that the conduct of which the employee is accused violates a contractual obligation, the employment relationship is concretely impaired as a result, and there is no reasonable possibility of other employment. Furthermore, a balancing of interests is also required here, so that a termination is only effective if it appears to be reasonable and appropriate when weighing the opposing interests of both parties.
Depending on the nature of the accusation, some of these requirements may not apply or others may be added (e.g., the fact that the employee has been accused of misconduct).B. a negative prognosis in the case of performance problems or the requirement of prior warnings).
The decisive factor – according to the courts – is whether the misconduct of the employee in the individual case is suitable to determine a calm and reasonable employer to terminate the contract
Behavioral reasons include poor work performance, unexcused absences, failure to comply with company regulations, criminal offenses, etc.
Under certain conditions, the mere suspicion of conduct in violation of the contract (suspicious termination) or pressure from a third party to terminate the employment contract (pressure termination) is sufficient.
What is a termination for personal reasons?
While a termination for behavioral reasons is based on the employee’s behavior, which can be influenced by him, a termination for personal reasons is based on the employee’s characteristics and abilities, which he (usually) cannot control.
Usually, the following conditions are attached to a person-related dismissal:
- There must be a ‘negative prognosis’ that the employee will not be able to fulfill his or her employment duties in the future due to his or her personal abilities and characteristics
- This must lead to a significant impairment of the operational or economic interests of the employer
- There must be no possibility of employing the employee in another job in which the lack of suitability would not be noticeable
- And finally, the same applies here: The conflicting interests of the employee in keeping his job and of the employer must be weighed against each other.
Examples of dismissals for personal reasons are: Reduction in performance, loss of driver’s license of a professional driver, absence due to illness.
A prior warning is generally not required in the case of personal reasons.
A subcategory of dismissal for personal reasons is dismissal due to illness.
What is a termination due to illness?
Termination can also be due to illness – but under very strict conditions.
When examining the legal validity of a dismissal due to illness, a distinction is made between the following groups of cases: long-term illness, frequent short illnesses or reduced performance due to illness.
The conditions that are decisive for the social justification of a dismissal are:
- There must be a ‘negative prognosis’ that the employee will not be able to fulfill his contractual duties in the future due to his illness
- The previous effects of the employee’s state of health and those to be expected according to the prognosis must lead to a considerable impairment of the operational interests (disruption of the operational process or economic burdens)
- And finally: The opposing interests of the employee in keeping his job and the considerable operational or economic burdens on the employer must be weighed against each other.
These hurdles are – as said – very high, because it should be avoided that employees lose their jobs just when they are ‘weakest’. Therefore, the weighing of interests is of particular importance: Even if the employer has disadvantages due to the illness of his employee, he may not terminate without further ado, but only if these disadvantages can no longer be expected of him.
Particular difficulties arise for the employer due to the evidence: He has to explain and prove that a negative prognosis exists. However, the employee has no obligation to provide information about his state of health, the existing illness or the prospects of recovery.
In addition, the special protection regulations for (severely) disabled employees or those who are equal to severely disabled employees naturally also apply in the context of termination due to illness (see special protection against dismissal).
The significance of the grounds for termination outside the KSchG
Outside of the Protection Against Dismissal Act, the verification of the (ordinary) reason for termination is of little importance, firstly because it is often not known and secondly because the legal requirements are much lower. In addition, the employee bears the burden of proof.
Since the reason is generally irrelevant outside of the KSchG, only the general requirements for effectiveness remain for review (e.g., the reasons for termination).B. formal requirements).
You have received a notice of termination or a termination agreement?
Make an appointment now with your specialist lawyer online or on site in
Frankfurt, Mannheim or Karlsruhe.
Telephone 0621 / 167 700 70
(valid for all locations – consultations by phone, online or on site possible)