You’re employed in Germany and received a termination? Getting fired is something extremely unpleasant. Receiving a termination notice can be a challenging and uncertain time. It's important to understand your rights and options to make informed decisions. Fortunately, the German employment law provides fairly good protection against unfair dismissal. In this article, look at your legal rights in case of layoffs, find guidance on what to do after receiving a termination notice, the possibility of severance pay, and when it is advisable to take legal action.
By Rupay Dahm, specialist lawyer for labour law, Berlin
Apart from the special protection against dismissal, for pregnant women, members of the works council or during parental leave, German labour law offers protection against dismissal in many cases, e.g. if it is unjustified, was given too short a notice or without a warning. For example: Simply having failed to achieve some goals and objectives, not fulfilling your target agreement does not constitute a valid reason for dismissal! Neither do lay-offs for operational reasons (staff reduction) do automatically justify your dismissal. But: If you want to do something against the dismissal, you have no time to lose (see 3-week deadline below)!
Important: 3 week deadline must be observed!
First things first: If your employer has dismissed you, you have exactly three weeks from receipt of the dismissal to file a lawsuit. After the three weeks have expired, you can do absolutely nothing against the dismissal, even if it was completely illegal.
Example: You received a letter of dismissal in your letterbox on Friday morning, April 28. According to the letter, your employment ends on June 30. You were out of town and did not notice the termination until May 3rd. Nevertheless, the three-week period starts to run on April 28: you have to file a complaint with the labour court within three weeks of receiving the notice of termination (if you work in Berlin, it is the labour court in Berlin): in this case it would be Friday, May 19 at the latest. The fact that your employment relationship is not due to end until 30th June, or that you were on holiday, does not matter.
Often you might need a moment to come to your senses and think about whether you really want to go to court. If in doubt, you can even file a complaint verbally at the labour court without a lawyer. This incurs practically no costs. Then you can still consider whether you want to go through with the court proceedings, what exactly your goal is (to continue working or to get a settlement?) or to instruct us as lawyers. We will also be happy to advise you on the likely costs.
Can I claim a severance pay?
In Germany, there is generally no entitlement to severance pay. Negotiating severance compensation typically occurs within the context of an lawsuit against unfair dismissal. To explore the possibility of receiving severance pay, it is essential to initiate legal action within the specified timeframe. Generally, you have a chance of getting a severance payment if
- You’ve been employed at the company for more than 6 months.
- Your company has more than 10 employees.
- You filed suit at the labour court (Arbeitsgericht) within 3 weeks after receiving the termination and:
- You didn’t commit any serious misbehaviour (e.g. fraud, physical or verbal attacks, theft…)
All of the above requirements must be met. Low performance, however, is no misbehaviour! In smaller companies or during the probationary period it is unlike to get a severance compensation. However, you should make sure that the notice period calculated correctly, see § 622 BGB, and that the termination is in writing (no e-mail, scan or pdf!). If you have questions, give us a call at Betz Rakete Dombek in Berlin Schöneberg.
Can an employer fire me via email?
No, according to German employment law a termination must always be provided in writing. Verbal, email, text message, WhatsApp, or other messenger service notices are invalid.
Should I acknowledge receipt of the termination notice?
You have the right to refuse signing anything if you choose to do so. You can always ask for time to check with a lawyer before signing anything. However, confirming receipt of a termination notice is simply a way for your employer to prove that you have received the letter. Signing that you received it does not imply you agree to the termination itself. Remember,
Crucial documents you should never sign in case of termination
Under no circumstances should you sign any document labeled "Aufhebungsvertrag" (termination agreement) or "Aufhebungsvereinbarung" (cancellation agreement). Signing such documents may prevent you from taking legal action, seeking legal advice, and could result in penalties from the employment agency (Arbeitsagentur) or Job Center.
When is it advisable to consider legal action?
You have a chance of getting a severance compensation if you have been employed for more than six months and the company has more than ten employees. Challenging dismissals in smaller companies or during the probationary period is rarely successful because you have no protection against dismissal according to the Kündigungsschutzgesetz (Protection Against Dismissal Act). If, however, the notice period has not been correctly calculated according to § 622 BGB or the written form is faulty, there might be a small chance. If you are uncertain about pursuing legal action, consider reaching out to professionals who can provide guidance, such as Betz Rakete Dombek in Berlin-Schöneberg.
How long will I continue to receive pay?
You are entitled to receive your salary until the end of the notice period, even if you have been released from work. However, this applies only if you continue offering to work and have made it clear that you are available (e.g. by email). If you are told to stay at home (Garden Leave / Freistellung), you still have the right to receive your salary. If the termination notice was not provided in writing but only by email, for example, you are still entitled to your full salary until you have been effectively terminated, as long as you have offered to work and your offer has been rejected.
Can the works council help?
For more information on what you can do in case of job cuts and how your works council can help in case of lay-offs: What to do in case of layoffs
If you’re interested in what works councils are good for, look at this article: What do we need a works council for?
What are the costs of taking legal action?
You can file a lawsuit at the labour court without legal representation, even orally at the legal application office (Rechtsantragsstelle), such as the Berlin Labor Court. Costs for legal action are relatively low and may not be incurred at all if an agreement is reached with the employer during the process, such as a severance payment. The fees for legal representation by a lawyer are regulated by law and depend on the amount in dispute (your income). If you have low or no income, you can apply for legal aid (Prozesskostenhilfe – PKH). Consultation fees with our office in Berlin-Mitte are subject to the German Lawyers' Fees Act (RVG), with a maximum initial consultation fee of 190.00 euros plus VAT.
Simply call us to make an appointment for a consultation at our office in Berlin-Schöneberg. We can then check you rights and options and discuss whether or not a lawsuit would make sense.
