Employment Law for Employers in Nuremberg

The right ground for dismissal depends on where the cause lies. A dismissal is personal where the employee can no longer perform the work for reasons they cannot influence themselves, for example a prolonged illness. It is conduct-related in the case of controllable misconduct, such as repeated lateness or refusal to work, and as a rule requires a formal written warning first. An operational dismissal applies where the position is eliminated by a business decision, for example the closure of a department. In this case, a social selection among comparable employees is additionally required.

The deadline only begins at the point when the person authorised to dismiss within the company learns the relevant facts in full, regardless of when the actual incident took place. This follows from section 626(2) of the BGB. If, for example, a managing director only learns of misconduct through an internal report or an investigation, the two weeks begin from that moment. This is exactly where employers most often come unstuck, because they hesitate over further investigation while the deadline runs out in the meantime. If the deadline is missed, the summary dismissal is invalid, even where the grounds for dismissal hold up on their merits.

No. A dismissal by email, fax or messaging app is invalid, because section 623 of the German Civil Code (BGB) requires written form with a handwritten signature for every dismissal. The most common formal error is therefore a dismissal that is not signed in original and served in that form. Equally important is the signing person’s authority to represent the employer. If someone signs without proven authority, the employee can reject the dismissal without delay, and it then has no legal effect.

A formal written warning is a precondition for a conduct-related dismissal in almost every case, because it is meant to give the employee the chance to change their behaviour. Without a prior warning, there is no proof that a repetition occurred despite being warned. The warning can be dispensed with in cases of particularly serious breaches of duty, where continuing the employment relationship is clearly unreasonable for the employer, for example theft to the company’s detriment. For personal and operational dismissals, a warning is generally not required, because the employee’s conduct cannot be changed in those cases. The line between the two categories is often narrow in an individual case and is worth examining before the dismissal.

For an operational dismissal, the social selection compares all employees who perform the same work and are interchangeable. Under section 1(3) of the Kündigungsschutzgesetz (Protection Against Dismissal Act), four criteria are decisive, namely length of service, age, maintenance obligations and severe disability. Whoever is, in sum, least in need of protection under these four criteria is selected. Professional performance plays no part in this. If even one comparable person is missing from the selection, the entire dismissal can be invalid.

The greatest risk lies in the fact that a termination agreement without valid written form is invalid, since section 623 of the BGB requires written form for termination agreements too. If the employer puts the employee under improper pressure when concluding the agreement, the employee can challenge it on the ground of unlawful duress. Unlike a dismissal, against which the employee must file a claim within three weeks, no short limitation period applies here. A challenge remains possible for up to one year, calculated from the point at which the coercive situation ends (section 124 of the BGB). At the same time, the employee negotiates from a stronger position, because unlike in litigation, they bear no litigation risk of their own. The severance payment, deadlines and release from duties should therefore be worked out in advance, so as not to have to improve the offer during the negotiation.