Protection against dismissal: Your rights as an employee

An employment relationship between employee and employer does not always run smoothly and so it comes to a termination. However, so that employees are not completely helplessly exposed to the arbitrariness of an employer, there is the dismissal protection . The Employment Protection Act gives employees the opportunity to take action against unlawful dismissals and to continue the employment relationship or at least to negotiate a severance payment. Your rights as an employee and what you should know about dismissal protection.

Protection against dismissal for employees: not a matter of course
Naturally, as an employee you are in a weaker position towards the employer. The German law compensates for this inequality by the protection against dismissal partially. There are two forms of protection against dismissal :

General dismissal protection
Applies to all workers regardless of whether they work full time, part time or in a mini job.

Special dismissal protection
This includes certain workers who are considered to be particularly vulnerable. This applies, for example, to employees during the nursing period, data protection officers and others (see below).

Apprentices are exempted from general protection against dismissal; they are protected by the Vocational Training Act (BBiG), in particular from dismissal from the employer.

General dismissal protection means for the employee that the employer needs a legal reason for termination in order to be able to terminate a worker correctly according to employment law. According to the K├╝ndigungsschutzgesetz (KSchG) a dismissal is only possible for three reasons:

operational reasons
behavioral reasons
personal reasons
Person -related reasons are also present in the case of illness-related termination . Occasionally, there is the rumor that protection against dismissal would be due to illness .

That's not true. Only according to the employment law of the former GDR (according to § 58d Labor Code of the GDR) dismissal during the illness was excluded. Under German law, sickness can be a cause of termination if the employee is permanently ill, is incapacitated for work in the long term or often falls ill for a short time.

Waiting time: protection does not work immediately
Protection against dismissal Waiting time Small businessThe legal dismissal protection takes effect only under certain conditions. Firstly, this means that you must be employed for at least six months without interruption . Pursuant to Section 1 (1) KSchG, your employer may terminate your employment at any time prior to expiry of this period. This waiting period is seen as a statutory probationary period.

For this waiting period, it does not matter whether the employee is employed full-time or part-time. The second condition, however, concerns the farm size :

The protection against dismissal and with it the waiting period only starts with a company size of more than ten employees - otherwise the company is considered a small business and thus subject to less stringent regulations. More below.

Protection against dismissal in small businesses: flexibility in favor of the employer
Of all these provisions are largely excluded the small businesses. This means that the legislator classifies the interests of the small business owner as superior to those of the employee. This is justifiable insofar as small businesses need a flexible termination right.

The boss is also the owner and works side by side with his employees . Every single employee contributes to the working atmosphere and thus also to the success of the company to a much greater extent in a small business.

If one employee fails out, this has far greater effects than, for example, in a large corporation. Also, a small business could not afford high severance pay due to lack of financial reserves.

Since 2004, it has been defined as a small business employing no more than ten workers , previously the limit was five. Temporary workers and part-time employees (20 hours per week: half-time employees, 30 weekly hours: three-quarters of employees) are also included in these calculations.

These aspects all play a part in the decision to take small businesses out of general employment protection . However, this does not mean that the employer can easily terminate his employees here. Even if the provisions of the German Employment Protection Act are not directly applicable, case law is often oriented towards small businesses as well.

As soon as the employer breaches the morality, good faith or a legal prohibition with a termination , this termination is also ineffective. This includes, for example:

According to § 612a of the Civil Code (BGB) , an employer may not discriminate against an employee simply because he exercises his rights. If, for example, an employer wishes to resign because a worker wants to set up a works council or refuses improper overtime, this termination is also ineffective in a small business.

prohibition of discrimination
According to Section 4 (1) of the Part-Time Work and Time Limitation Act (TzBfG), part-time employees must not be disadvantaged compared to full-time employees. The employer must weigh here as in the social selection in case of redundancies in larger companies, who may keep his job and who has to leave.

council hearing
According to section 102 (1) sentence 1 of the German Works Constitution Act (Betriebsverfassungsgesetz - BetrVG), a works council must be consulted prior to each termination, otherwise it is ineffective. In principle, this also applies to small businesses, because theoretically, from five employees entitled to vote, one person can be elected as a works council. However, in fact, very few small businesses have a works council, so the effectiveness will hardly be doubted.

Incidentally, an important provision of the K├╝ndingungsschutzgesetz also applies to small businesses: the deadline for filing a dismissal protection suit . Anyone wishing to have the ineffectiveness of a notice of termination determined as a worker must, in accordance with § 4 sentence 1 KSchG, bring an action to the labor court within three weeks. Otherwise, the termination may be found to be lawful, even if it was originally ineffective.

Deadlines in the employment protection law for both parties
The dismissal protection law in its present form exists only since 1990. And only since 1993 workers and employees are equal in the periods of notice - previously were for workers shorter notice periods.

Protection against unfair dismissal is always in conflict between the interests of the employer and the employee :

The secure workplace means the economic livelihood . Those who are affected by unemployment often can not maintain the old standard of living. This can mean impoverishment and exclusion, since social participation is often no longer possible. These circumstances, and the fact that many workers are not only responsible for themselves but possibly also for a family, mean that there is an interest in the employees' side to a strong protection against dismissal .

The freedom of one is the limitation of the other: the employer is affected by the employment protection in his entrepreneurial actions , because he is not completely free in his decisions. Employees who do not perform the required service for a variety of reasons can be financially distressed if personal or operational termination is not possible. The employer is often responsible for several employees and not least for himself and his family. A company with personal and economic problems is thus a risk for the owner and his family, but also for other employees. From an employer's point of view, there is an interest in weak protection against dismissal .

Which notice periods apply, the employment contract or collective agreement specifies. In both cases, however, legal requirements must not be exceeded - labor or collective agreements can only agree on longer periods.

Labor law seeks to satisfy both parties. If nothing else is stipulated by contract, the so-called basic notice period for employees is four weeks to the 15th of a month or to the end of the month. For the employer, the deadlines are extended with the duration of the employment relationship:

The statutory period of notice is when the employment relationship in the company ...

two years , one month to the end of a calendar month.
five years , two months to the end of a calendar month.
eight years , three months to the end of a calendar month.
ten years , four months to the end of a calendar month.
twelve years , five months to the end of a calendar month.
15 years , six months to the end of a calendar month.
20 years , seven months to the end of a calendar month.
Which deadline is to be observed in case of termination
Dismissal Protection Law Deadlines Protection against dismissal Employees Dismissal Protection ActAnyone who has been wrongfully terminated as an employee must submit an employment protection suit to the Labor Court within three weeks of receipt .

This deadline should be observed, because even if you were actually right in the matter, the termination is effective after the deadline .

You therefore no longer have the opportunity to win a dismissal protection procedure, as the reasons for termination can no longer be objected to.

Older workers protected by social choice
In contrast to pregnant women and other groups of workers, there is no special protection against dismissal for older workers. First of all, what would have to be defined as "older" - workers over 40? Or from 50? Legally or scientifically, this term is not defined.

However, as a rule, employees aged 55 or over are classified as older workers. The fact that they get into focus is because at a certain age, many people have health problems . For employers, such employees may be at financial risk if workloads due to sickness or the like are significantly reduced.

For potential new employers, employees over the age of 50 also run the risk of higher salaries due to their work experience . In this respect, older people have to deal with problems that they did not have in their younger years. Nevertheless, no legal dismissal protection applies.

Exceptions exist, however, mostly in the public service . Collective agreements stipulate, for example, that 55-year-olds may not be dismissed for loss of earnings after 20 years of employment. However, the Employment Protection Act has special provisions for older employees in the event of severance pay.

So applies to ...

A 50-year-old with a 15-year employment receives a compensation of 15 months' salary.
A 55-year-old with a 15-year tenure receives a compensation in the amount of 18 months' salary.
Although no special protection against dismissal applies, the age of employees in the case of termination is taken into account in the social selection .

Special protection against dismissal for pregnant women, disabled persons and works councils
Protection against dismissal Pregnant womenIn addition to the general dismissal protection exists for certain workers a special protection against dismissal. If the employer wants to terminate these employees, he usually needs the approval of an authority. These include, inter alia, pregnant women, severely handicapped and works councils:

pregnant woman
Pregnant women are particularly protected by the Maternity Protection Act (MuSchG) at the workplace. The aim is not only protection against loss of the job, but also the protection against physical strain . The special dismissal protection applies to:

temporary workers
Mini jobbers
female students
Part-time employees
According to § 9 MuschG, pregnant women enjoy special protection against dismissal from the beginning of pregnancy until the expiry of four months after delivery. This applies regardless of the duration of the employment relationship and the size of the company.

The beginning of the pregnancy is calculated by counting 280 days from the delivery date. The statement requires a medical certificate .

More about this including the new features from 2018 read here:

Maternity Protection Law: You have to know that
The principle is that all companies should participate in the participation of people with disabilities in working life . Accordingly, dismissals of severely disabled employees should be avoided as far as possible.

An employee is considered severely disabled if he or she has a degree of disability of at least 50 . However, if there are circumstances that make the dismissal of a disabled employee seem necessary, the works council , representatives of the severely handicapped and the integration office must be informed.

Without the consent of the competent integration office , a pronounced termination is not effective. Exceptions are only if a termination contract is concluded or the employment relationship is less than half a year.

Anyone who is a member of a works council as a worker can generally not be properly dismissed under Section 15 KSchG . However, there are exceptions : If, for example, a company is shut down, members of the works council may be dismissed properly.

Otherwise may only be terminated extraordinarily; there must be an important reason within the meaning of § 626 paragraph 1 of the Civil Code (BGB). In addition, the works council must give its consent to the dismissal of the works council member, on the other hand, the labor court can grant this at the request of the employer (if the extraordinary dismissal is justified).

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