Even experienced and shrewd personnel managers prefer to play it safe when it comes to notice periods. Because they know that even small mistakes here can be expensive. What you need is a reliable guide to cancellation periods. Here he is.
Content
Notice periods usually only become a hotly debated and sometimes contentious issue when a professional separation is imminent and HR has to give notice to one or more employees. But even if one of your employees wants to change jobs and quits. In both cases, the party giving notice – whether employee or employer – must know exactly what notice period to observe. Here’s what employment law says.
What does notice mean?
The Gabler Wirtschaftslexikon defines the term as follows: "The notice period is the period of time between the notice of termination and the resulting termination of the contract." Without a notice period, neither of the two contracting parties would have the chance to look for a new contracting party – i.e. employee or employer – in time and with sufficient advance notice. According to their importance, the notice periods are basically fixed by the legislator.
Good to know: The contracting parties only have to observe a notice period for ordinary terminations – an extraordinary termination without notice does not know a notice period.
From when does the notice period begin?
Only then, if the notice of termination has reached the contracting party, the period of notice begins to run. Incidentally, the date of receipt of the notice of termination is determined in accordance with § 187 para. 1 German Civil Code (BGB) not included in the notice period. For a concrete example, see "How to calculate the notice period".
Managing notices in a legally secure manner
Store termination documents where you also manage all other documents of the employee: in the digital personnel file of Personio. This makes the termination process clear, transparent and DSGVO-compliant for everyone.
The notice period in labor law, collective bargaining agreements and employment contracts
The notice period can result from labor law, an applicable collective bargaining agreement or also from the individual employment contract. As a rule, HR, as an agent of the employer, determines the individual notice period for an employee in the employment contract. If reference is made in this document to the statutory regulations on the period of notice, these shall apply. If a collective bargaining agreement is applied in the company for the new employment relationship to be concluded, the notice periods stipulated in the collective bargaining agreement shall only apply on one condition – if they are more favorable for the employee.
If you, as HR, do not stipulate an individual regulation in the employment contract, the statutory period of notice always applies. A look at the BGB and there at § 622 will show you what this looks like. See also "Periods of notice according to length of employment".
Notice period for employees
The statutory notice period for employees is four weeks to 15. Or at the end of a calendar month. This applies as soon as the employee longer than six months is employed in your company.
| 0 to 6 months (probationary period) | 2 weeks to each day |
| 7 months to 2 years | 4 weeks to the 15. or. to the end of the calendar month |
Source: § 622 Abs. 3 BGB (as of November 2018)
As HR, you can extend this statutory period of notice in the employment contract – but you can never shorten it. Any extended period of notice is binding for both parties to the contract.
exception: In smaller companies with fewer than 20 employees, you as HR do not need to provide notice of termination dates as of the 15. of a month or to the end of the month – you can give notice to the employee on any day – with a notice period of 4 weeks.
How employees calculate their notice period
To determine their notice period, employees must first find out whether there is a statutory or contractual notice period provision.
Statutory or contractual notice period?
The statutory general notice periods (§ 622 BGB) only apply if the employment contract or collective bargaining agreement does not contain any other provisions or special provisions, if no special statutory provisions apply (z.B. for severely disabled persons) and no insolvency proceedings have been opened against the employer.
Date of receipt of notice as the basis for calculation
The date on which the notice is received by the employee serves as the basis for calculating the notice period – regardless of what date the notice letter itself bears. How the notice periods are calculated exactly, is in the civil code in detail specified (§§ 187 ff. BGB).
The day on which the employee receives the notice of termination is not included in the calculation of the notice period. Instead, only the following day counts. Sundays and holidays are counted as normal working days.
Calculate end of notice period
In most cases, a notice period of weeks or months applies, with the cut-off date being 15. of a month or the end of the month is specified. The law states that the notice period ends "at the end of that day of the last week or month which by its designation corresponds to the day in which the event or time falls".
Calculating the notice period: Examples for employees
Example 1: If a notice period of one month applies to a notice of termination, and if the notice of termination is received on the 15. of a month, the notice period ends on 15. of the following month to the end of the day (24 o’clock).
Example 2: If a notice period of four weeks applies and the notice is received on Friday, the period ends four weeks later on Friday at the end of the day (midnight).
Avoid notices of termination
You need professionalism and tact to ensure that terminations are not necessary. Conduct a well-founded critical discussion with the employee concerned.
Notice period for employers
Up to a period of employment of the employee of two years, there is no difference in the notice period for employer and employee. But after the magic limit of two years, the notice period for the employer is automatically extended. This does not affect a potential termination by the employee. The longer notice periods are specified in § 622 para. 2 BGB.
| 0 to 6 months (probationary period) | 2 weeks to each day |
| 7 months to 2 years | 4 weeks to the 15. or. to the end of the calendar month |
| 2 years | 1 month to the end of the calendar month |
| 5 years | 2 months to the end of the calendar month |
| 8 years | 3 months to the end of the calendar month |
| 10 years | 4 months to the end of the calendar month |
| 12 years | 5 months to the end of the calendar month |
| 15 years | 6 months to the end of the calendar month |
| 20 years | 7 months to the end of the calendar month |
Source: § 622 para. 2 BGB (as of November 2018)
Calculate the notice period: Examples for employers
To help you get a better feel for the finer points of the notice periods, we have compiled three examples for you below. In general, please note: It is not the date of the termination letter that is used to calculate the notice period, but the Date of receipt of the notice of termination!
When calculating the deadlines, you are on the safe side if you apply the rules formulated in § 187 ff BGB (German Civil Code).
Example 1: You wish to give an employee who has been with the company for one year ordinary notice of termination at the end of the 30.11. give notice. Then you must give four weeks’ (28 days’) notice of termination – i.e. no later than 2.11. The day of receipt of the notice of termination (in this case the 2.11.) does not count towards the notice period, so the period runs from the 3.11.
Example 2: Another employee has already been employed by your company for more than two years. If you give him 30.11. If you wish to terminate your contract, you must give one month’s notice to the end of the month – i.e., on the 31st day after the end of the month.10. of the current year.
Example 3: An employee has been with the company for 17 years. It is to be effective as of 31.12. be given ordinary notice of termination. The statutory notice period of 6 months to the end of the month applies here. You must therefore give notice by 31.6. have given notice so as not to make a mistake in calculating the notice period.
When calculating the notice period, you should always keep in mind how you serve the notice. Because an ordinary notice of termination can be invalid if it is delivered incorrectly.
To be on the safe side, you can choose this or a comparable formulation: "We hereby give you notice of termination with due notice as of XX.XX. Alternatively, to the next possible date."
The notice period during the probationary period
During the probationary period, which can last up to six months, both parties to the contract have the opportunity to begin with a Notice period of 2 weeks to any day to terminate the contract – without giving reasons.
During the probationary period, the statutory protection against dismissal does not yet apply – and a notice of termination can therefore still be issued on the last day of the probationary period.
Pitfall for HR: This much shorter notice period only applies if you explicitly aim for it in the employment contract and formulate, for example, that the employment relationship can be terminated "after the end of the probationary period by both parties with a notice period of xx to yy".
Periods of notice according to length of service
As mentioned above, the notice periods for the employer are extended after two years of employment. Here is an overview of the longer notice periods:
| Length of employment | Period of notice |
| 0 to 6 months | 2 weeks to any day |
| 7 months to 2 years | 4 weeks to the 15th day. or at the end of the calendar month |
| 2 years | 1 month to the end of the calendar month |
| 5 years | 2 months to the end of the calendar month |
| 8 years | 3 month to the end of the calendar month |
| 10 years | 4 month to the end of the calendar month |
| 12 years | 5 month to the end of the calendar month |
| 15 years | 6 month to the end of the calendar month |
| 20 years | 7 month to the end of the calendar month |
Good to know: In the sense of equal treatment, the European Court of Justice has already decided in 2010 that also those periods are to be counted to the length of service, in which employees have already worked before their 25 years of age. you have been employed by a company since your 60th birthday. This regulation is above the statement of § 622 para.2 sentence 2 BGB, which stipulates the opposite.
Always keep an eye on notice periods
Whether you need to give notice to employees tomorrow, next week or in a month: Personio reminds you as well as managers of important deadlines on time, so notices are always delivered on time.
Special legal regulations and exceptions
In the following cases you must observe special legal regulations.
At severely disabled employees the minimum notice period stipulated in § 169 SGB IX is 4 weeks, i.e. as for other employees, also. This regulation is only important if an applicable collective agreement regulates a shorter period than these 4 weeks. Before terminating the employment of a severely disabled person, you must apply to the Integration Office, without its consent, the termination is invalid.
In an ongoing Insolvency proceedings the notice period for both sides is a maximum of 3 months to the end of the month – no matter how long the employee has been employed (§ 113 S. 2 InsO)
At the fixed-term employment contract the labor law does not provide for the possibility of ordinary termination – the employment contract ends at the agreed time period. There is no notice period. But: You can make deviating regulations in the employment contract.
A extraordinary notice of termination can only be done within a period of two weeks (§ 626 para. 2 BGB). Both employer and employee have two weeks time , present the extraordinary notice of termination. Therefore, the extraordinary dismissal is often called termination without notice Designates. The prerequisite for extraordinary termination, however, is that there is such a serious reason for termination that it would be unreasonable for both parties to remain in an employment relationship until the end of the notice period.
Incorrectly calculated notice period – this is what happens
If you, as HR, have calculated a notice period incorrectly, there are different consequences. These depend on the wording of the notice and on the individual case.
Case 1 – First, you have miscalculated the date of termination, using the following or similar wording: "We hereby terminate the employment relationship on 31. December 2019." This does not directly indicate that you would have given notice of termination at a different time as well. The employee can file an action for protection against dismissal.
Case 2 – Firstly, you have calculated the notice period incorrectly, choosing the following or similar wording "We hereby terminate the employment relationship with due notice as of 31. December 2019." The small word "in due time" indicates that you as HR strive to comply with the present and relevant notice period. In this case, the incorrect termination date is replaced by the legally permissible one.
Case 3 – Again, you have calculated the deadline incorrectly. The selected wording is "We hereby terminate the employment relationship as of December 31, 2019. December 2019, or in the alternative, the next possible date."The notice of termination is effective by the addition – as of the next possible date.
Case 4 – You are treading on very thin legal ice with the following wording: "We hereby terminate the employment relationship as of the next possible date."Such a notice of termination can be invalid because it does not specify when you want to end the employment relationship.
Disclaimer:
We would like to draw your attention to the fact that the contents of our website (including any legal contributions) are intended only for non-binding informational purposes and do not constitute legal advice in the true sense of the word. The content of this information cannot and is not intended to replace individual and binding legal advice that addresses your specific situation. In this respect, all information provided is without guarantee of accuracy, completeness and timeliness.