Protection against dismissal: When employees cannot be dismissed

The general protection against unfair dismissal is based on the German Unfair Dismissal Protection Act (KSchG). This applies if

1. the company regularly employs more than 10 workers,
2. the employment relationship began on 1 January 2004 or later, and
3. the employer has been employed for more than 6 months (is no longer in the probationary period)

Please note:

• If the employment relationship already existed on 31 December 2003, the law on protection against unfair dismissal applies if the company usually has more than 5 employees.
• Part-time employees are taken into account on a pro rata basis, i.e. 0.5 employees are counted for a weekly working time of up to 20 hours and 0.75 for no more than 30 hours.

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.

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.

Not allowed to be dismissed

1. Employees during voluntary military service or reserve service (in the case of voluntary service only up to six weeks per calendar year)
2. Employees during a suitability exercise (§ 2 EignungsübungsG)

Dismissals only after approval of a state authority

1. During pregnancy and until four months after delivery (§ 17 Maternity Protection Act - MuSchG),
2. Employees on parental leave (Section 18(1) Federal Parental Benefit and Parental Leave Act - BEEG),
3. Employees who work up to 30 hours per week during parental leave with the same employer (Section 18 (2) no. 1 BEEG),
4. Employees who do not take parental leave, work part-time for up to 30 hours a week and are entitled to parental benefit within the first 14 months of the child's life (§ 18.2 no. 2 BEEG),
5. Severely disabled persons, i.e. persons with a degree of disability of at least 50 (§ 2 paragraph 2 and § 168ff. Ninth Book of the Social Code - SGB IX),
6. Employees,
   • in the context of a temporary inability to work, i.e. a period of absence from work of up to ten working days, if this is necessary to organise or ensure appropriate care for a close relative in need of care in an acute care situation,
   • who are on nursing leave because they are caring for a close relative in their home environment,
   • who request leave of absence for the care, also outside the home, of minors in need of care in accordance with the Long-Term Care Act,
   • or who take leave of absence to accompany a close relative in the last phase of life (§ 5 Pflegezeitgesetz)
   • who take the family care time or leave of absence for the care, also outside the home, of minors in need of care in accordance with the Family Care Time Act (§ 2, paragraph 3, Family Care Time Act in conjunction with § 5, Care Time Act).

Special rights for works council members

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).

Groups that have no special protection against dismissal

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.

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.