Table of contents
What is the general protection against dismissal?
The general protection against unfair dismissal is based on the German Unfair Dismissal Protection Act (KSchG). This applies if
If your are protected against dismissals, a termination is only effective if it is socially justified (§ 1 KSchG) (except for trial period dismissals within the first six months). A dismissal is socially justified if the reasons lie in the person or behaviour of the employee or if there are urgent operational requirements.
Furthermore, a dismissal is not socially justified if the dismissal violates a guideline for the dismissal of employees confirmed by the works council (Sec. 95 BetrVG) or if the possibility of the employee continuing to work at another workplace in the company has been effectively opposed (Sec. 1 (2) KSchG).
Exceptions for senior executives
In principle, anyone can obtain general protection against dismissal. However, special provisions apply to executive employees, such as managing directors or plant managers (pursuant to § 14 para. 2 KSchG). Here, the employment contract is terminated by the court. The application does not require any justification. As compensation, the employees receive a compensation fixed by the court. Furthermore, they cannot appeal to the works council against a socially unjustified dismissal.
Which groups of employees are under special protection?
The special protection against dismissal covers employees who are particularly in need of protection. In the following, we will show you who is covered and how this makes it more difficult for the employer to terminate the employment.
In addition, works council members or other members of a works constitution body are entitled to special protection against dismissal. According to § 15 KSchG, extraordinary termination is only permissible with the approval of the works council (more on this in the article on proper termination).
Even if there is no special protection against dismissal for the following groups of people, they may still fall under the general protection against dismissal
1. Sick employees
It is a myth that a worker suffering from health problems cannot be dismissed. However, this is a misconception. A sick worker may be dismissed for the same reasons as a healthy worker. They can even be dismissed for their illness.
2. Employees with high seniority
It is a misconception that employees with a certain level of seniority are non-terminable. However, employees with high seniority have a fundamental advantage when it comes to terminations for operational reasons. This is due to the fact that one of the many factors that play a role in the selection of employees is their seniority.
3. Older employees
The belief that once a person reaches a certain age they cannot be dismissed is still widespread. Although older employees do not enjoy special protection against dismissal, they are in some cases in a better position than younger colleagues when it comes to dismissals. Find out more about the unique requirements for terminating the employment of older employees.
How do you contest wrongful terminations?
The validity of the dismissal that seem unjustified can be challenged through an action for protection against unfair dismissal (§ 4 KSchG) within 3 weeks after the termination. As a result you can either claim re-employment or a severance payment. If you fail submit in time, even socially unjustified dismissals become effective.