Terminated In Germany: Was it Legal?

Losing a job - whether it’s due to operational reasons (i.e. layoffs) or to performance - is not easy. Particularly when you are not expecting it. Even though Germany has extensive laws around protecting the employee from being let go without valid reasons, it is unfortunately still very commonplace for people to be let go illegally.

German Labor Law is not just a single law but rather a collection of different acts that address everything from equal treatment to remuneration after being let go. It is detailed and intended to protect the employee, but often people are unaware they’ve been treated unfairly and as a result, miss out on an opportunity to take legal action against the employer that has wronged them.

When do protections against dismissal go into play?

When it comes to dismissals before 6 months, an employer generally has the right to terminate the contract without cause with two weeks notice.

Once you have worked for an employer for six months, and that employer has 10 or more employees, other regulations about dismissals come into play. You still are entitled to other rights from your first day, but particularly when it comes to the procedures of dismissal, this changes once you have passed your probation

What are the types of dismissals in Germany?

There are major three reasons an employer can end your employment: Personal Reasons (Performance), Behavioral, and Operational. The termination can either be Ordinary (meaning given with notice, timely) and Extraordinary (without notice, could be with immediate effect).

It is an employer’s responsibility to do what they can to salvage the working relationship between themselves and a hired employee.

Personal Reasons i.e Performance, Company/role fit):

In order to be let for personal reasons following your probation, you will need to have been given formal written warnings that your job performance needs to be improved. The general rule is three warnings, but sometimes one can be enough for an employer to argue in court that they made an effortt. Once you have been given the warning, you have a full six weeks to show improvement before another discussion is held. If by the end of the three warnings, performance has still not improved and the employer no longer sees that you are right for the company, they can terminate the contract. With that being said, your notice period will still be paid out.

Example of a performance dismissal: Tommy works for Company A; his manager Stephanie has noticed that his performance is not reaching the caliber of what they want. Stephanie sets time to meet with Tommy and lets him know he will be put on a performance plan; Stephanie recaps the meeting and what it means via email and letter. Six weeks later, they meet again and still no improvement; another letter is sent. Finally, another 6 weeks has passed, and another warning is given. By this point it has been four and a half months, with no real improvement. Stepanie decides it's time to end the working relationship with Tommy and has removed his obligation to work. He is now without a job, and since his notice period was two months, he will remain “on the books' ' of Company A for two additional months.

Operational Reasons i.e. layoff, restructuring, company closing (Ordinary Dismissal):

To be dismissed for operational reasons requires a substantial amount of proof from the employer that there was no alternative other than to let the individual go. For the employer, this means having specific calculations about the longevity of the company and how your role does not fit into the company’s plan for survival; that there were no other roles within the company the individual could perform; and that social selection was evaluated - meaning that of all the options of people who could be let go, that individual was the person that had the least to lose by being without a role (i.e. social selection). Without this proof and work done, the grounds for an operational dismissal can be contested.

In terms of settlement: the bare minimum that needs to be provided is your notice period term and generally the rule of thumb is an additional lump severance payment of .5 month’s pay per year you were employed. However, this can of course be negotiated for more favorable terms.

Example of an operational dismissal: Tommy has been working at company A for two years. He finds out that along with two of his colleagues on the marketing team, he could potentially be laid off due to declining revenue and increased competition in the market cutting at the company’s market share. Before doing this, his manager shares that there is a role in the engineering department but that he unfortunately doesn’t have the skills to perform the role. He has a three month notice period and is therefore told he will be on garden leave for three months. Since he has worked at the company for two years, they have also offered to give him an additional one month’s salary on top. .

Behavioral Reasons i.e. theft, gross misconduct (Extraordinary Dismissal):

Generally rare, but a behavioral dismissal needs to have proof of the employee breaching their contract, doing something grossly negligent and/or anything that might threaten the physical or mental safety of their co-workers. With this kind of dismissal, it can be done without notice but there should be significant proof that something was done, otherwise it can be easily contested in court.

Example of a behavioral dismissal: Tommy had an argument with his colleague on the marketing team, and when it got heated he pushed his colleague and threatened to beat him up while in the office, with several people witnessing and video cameras catching the altercation.

I was let go - but the reason they gave me doesn’t match the protocols they took - what now?

It can sometimes make it hard to decipher whether or not you have a case - but the easiest way to tell is by looking at what type of dismissal they gave you, and looking back at the evidence of what you experienced. Did they say it was operational but have 60 open roles they’re actively hiring for? Did they claim it was performance, but never gave you any warnings about your performance needing to improve? Are they claiming it's behavioral with zero evidence of your wrong doing, and in fact, you have proof of the opposite?

If you see there are elements to your dismissal that seem off - or don’t follow the rules governed by German labor law - it is worth speaking to a labor lawyer as soon as possible. You only have three weeks from the date you were handed notice to file a claim, so it is important to act fast.