Table of contents
What notice period is applicable to you?
The period of notice refers to the period of time between the moment when the employee receives the notice and the moment when the employment relationship is terminated. This period of notice is very important, as it can have a major influence on the effectiveness of the notice of termination as well as other matters relevant to the notice of termination, such as the entitlement to unemployment benefits. undefined
A longer period usually applies for employers than for employees. The reason for this is that the employee is considered more worthy of protection vis-à-vis the employer. Decisive for the employer's statutory period of notice is the employee's seniority.
However, in addition to the notice periods mentioned above, there are some exceptions that should be taken into account:
During the probationary period (which may last a maximum of 6 months), a notice period of 2 weeks applies.
Trainees may be dismissed at any time during the probationary period without notice in accordance with § 22 BBiG.
The termination can be terminated extraordinarily without notice in case of particularly serious reasons, for which the employer cannot reasonably be expected to maintain the employment for longer (e.g. if the employee has committed theft).
Notice periods determined in a valid collective agreement take precedence over statutory notice periods. Shorter periods of notice may therefore apply under certain circumstances.
A period of notice contractually agreed outside the collective agreement is permissible, as long as it is not less than the statutory period of notice. In this case, the more favourable period always applies to the employee.
For severely disabled employees, the period of notice may not be less than 4 weeks (§ 86 SGB IX).
What formal requirements must be met?
Notice of termination must be given in writing (§ 126 BGB in conjunction with § 623 BGB). It is interesting to note that the electronic form was explicitly excluded for the termination of the employment relationship (§ 623 BGB). Only the handwritten signature therefore satisfies the written form requirement. Notice of termination by oral debate, fax, e-mail or even SMS are therefore inadmissible and invalid (§ 125 BGB).
In addition, the notice of termination must be signed by the person who issues it. The letter must therefore always be signed by the employer or a person authorised to represent the company (e.g. the HR manager). If the person signing the letter is not authorised, the dismissal can be rejected. If the written form is not met, the notice of termination is invalid and has no effect. The employment relationship continues to exist in these cases.
What information must be included?
A termination must be clearly and unambiguously formulated. However, the word "termination" need not be included.
The date on which the employment relationship is to be terminated must also be clearly stated. For this purpose, it is usually sufficient to simply state the date of termination. However, a reference to the relevant statutory provisions is also sufficient if the end of the employment relationship can be determined so easily (in BAG file no. 6 AZR805/11 "at the next possible point in time").
The indication of reasons for the termination is generally not required for the effectiveness the notice. However, the recipient has a right to know the reason for termination (§ 1 para. 3 sentence 1 Hs. 2 KSchG for ordinary termination or § 636 para. 2 sentence 3 BGB for extraordinary termination). If the reasons are not communicated, the employee has the right to be placed in the position he would have been in if he had been orderly notified. However, it can also be agreed in the employment contract that the reason for dismissal must be communicated. In addition, when a pregnant woman is dismissed, there is also an obligation to notify the reason for termination (Section 9 para. 3 sentence 2 MuSchG). This obligation also exists in the case of a dismissal during the probationary period (§ 22.2 BBiG).
» Employees can only be lawfully terminated on certain grounds. Find out more about justified reasons for termination in our article on grounds for termination.
How can you defend yourself against terminations?
Employers often do not comply with all requirements for lawful terminations. 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.