Reasons for termination - when a termination is (not) legal

  • Employees who are under the general protection against dismissal may not be dismissed without cause.
  • Dismissals are only permitted for specific personal, behavioural and operational reasons.
  • Find out under what conditions dismissals by the employer are justified.
  • We also explain how you can defend yourself against unjustified dismissals.

Table of contets

What reasons for terminations are permissible?

In principle, only socially justified terminations are lawful if employees are under protection against dismissal (§ 1 KSchG). A dismissal is socially justified if the reasons lie in the employee's person or behaviour or if there are urgent operational requirements.

The following is an overview of the individual grounds for termination and the associated conditions:

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  1. The employee lacks the aptitude for the job, which means that he or she can no longer perform the work properly. This includes, for example, the following cases:
    • illness
    • loss of a work permit
    • loss of a professional licence (e.g. driving licence)
    • lack of sufficient language skills
    • refusal to work by the employee due to a conflict of conscience
    • alcohol or drug addiction
    • a longer prison sentence
  1. The lack of work performance results in impairments for the employer, such as disruptions in operation or economic losses.
  2. Before terminating, the employer must have attempted to continue to employ the employee at another vacant job where the reduced suitability does not affect the job.

» Read more about dismissal due to illness in our article on dismissal due to illness.

  1. A poor economic situation or restructuring of the company leads to the loss of certain jobs. These include, for example, the following cases:

    • Closure or outsourcing of departments and branches
    • Closure of the plant

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  1. There is no other possibility of continuing to employ the employee at another workplace.

  2. When selecting the dismissed employees, the employer must take into account the social circumstances of the employees.

» Find out more about redundancies and employee selection in our article on redundancies.

  1. The employee must have breached an obligation under the employment contract. What you do outside work cannot be a reason for dismissal for conduct. Violations of contractual obligations include, for example

    • failure to appear at work
    • repeated late appearance at work
    • too slow or faulty execution of work
    • repeated infringement of the company rules
    • attacks on superiors, colleagues or customers
    • theft

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  1. The employee has no justifiable reasons for the breach of duty.

  2. The employer must - in principle - have given the employee a prior warning for similar misconduct.

A permissible reason alone does not justify a termination. In addition, further employment must be unreasonable for the employer. This is the case if the employer's interest in terminating the employment relationship outweighs the employee's interest in continuing the employment relationship. This balancing of interests always depends on the circumstances of the individual case.

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What other requirements must be met for terminations?

In addition to sufficient justification for redundancies, employers must comply with further requirements for lawful terminations. These include in particular

  1. termination notices must comply with formal standards: appropriate notice period, sufficient justification, and written form,

  2. if applicable, compliance with the special protection against dismissal for certain groups of employees: people in voluntary military service, pregnant women up to 4 months after giving birth, employees on parental leave, parents on part-time work within the first 14 months of the child's life, severely disabled persons, employees on nursing leave or temporarily unable to work due to an acute nursing situation, and works council members,

  3. if applicable, consultation of the works council.

How can you defend yourself against a termination?

Many terminations do not comply with the requirements and are therefore unlawful. If you believe your termination is unlawful, you can challenge it to either receive severance pay or continue employment. To challenge your dismissal, you must file an action for protection against dismissal with the labour court within 3 weeks of receiving the notice. If you fail to do so, even a dismissal that is not justified will take effect.

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