Protection against dismissal as an employee
Advice for employees
As an employee, do you actually know your rights in the event of a dismissal?
At work, things don't always run smoothly between you and the boss and suddenly you have a resignation in your hands. What to do now
First things first:
1. Never sign - never really! - a termination agreement without having previously presented it to a lawyer for examination!
As a rule, your colleague who is well versed in labor law will advise you not to sign one anyway.
2. Go to the lawyer immediately after receiving a notice of termination!
Because the deadline to take legal action against a termination is only 3 weeks (!) From receipt of the termination. After that, the termination is final and the employment relationship is ended!
Naturally, as a simple employee, you are in a weaker position vis-à-vis the employer in the event of a dismissal. But it doesn't have to be that way if you are protected against dismissal under German law.
General protection against dismissal may come into question for you, if
- You work in a company with more than 10 employees and
- you have been employed there for more than 6 months.
Then the employer needs a legal reason for termination in order to be able to terminate the employee correctly under labor law.
According to the Employment Protection Act (KSchG), termination is only possible for three reasons:
- Operational reasons
- Behavioral reasons
- Personal reasons.
The employer must of course provide information about the reasons for the termination in his opinion. Whether this reason actually exists is subject to judicial control. Not every reason is enough in court.
At work, things don't always run smoothly between you and the boss and suddenly you have a resignation in your hands. What to do now
First things first:
1. Never sign - never really! - a termination agreement without having previously presented it to a lawyer for examination!
As a rule, your colleague who is well versed in labor law will advise you not to sign one anyway.
2. Go to the lawyer immediately after receiving a notice of termination!
Because the deadline to take legal action against a termination is only 3 weeks (!) From receipt of the termination. After that, the termination is final and the employment relationship is ended!
Naturally, as a simple employee, you are in a weaker position vis-à-vis the employer in the event of a dismissal. But it doesn't have to be that way if you are protected against dismissal under German law.
General protection against dismissal may come into question for you, if
- You work in a company with more than 10 employees and
- you have been employed there for more than 6 months.
Then the employer needs a legal reason for termination in order to be able to terminate the employee correctly under labor law.
According to the Employment Protection Act (KSchG), termination is only possible for three reasons:
- Operational reasons
- Behavioral reasons
- Personal reasons.
The employer must of course provide information about the reasons for the termination in his opinion. Whether this reason actually exists is subject to judicial control. Not every reason is enough in court.
One more thing about personal termination: There are personal reasons, for example, in the case of termination due to illness. There is still a persistent rumor that dismissal protection would exist in the event of illness. However, this is not true.According to German law, illness can be a reason for dismissal if the employee is permanently ill, will be unable to work in the long term or is very often ill for a short time. There must be a negative health prognosis for the employee.
If you are in a so-called small business, ie with no more than 10 employees or less than 6 months, the employer has a much more flexible right of termination. Then it looks a lot worse for you.
However, no reason to bury your head in the sand and simply accept the termination. Because this is where we come in!
Because just because the general protection against dismissal under German law does not apply here, that does not mean that the employer can dismiss his employees without further ado. As soon as the employer violates morality, good faith or a legal prohibition by giving notice, this notice of termination is also ineffective.
Pitfalls for the employer can be, for example:
If you are in a so-called small business, ie with no more than 10 employees or less than 6 months, the employer has a much more flexible right of termination. Then it looks a lot worse for you.
However, no reason to bury your head in the sand and simply accept the termination. Because this is where we come in!
Because just because the general protection against dismissal under German law does not apply here, that does not mean that the employer can dismiss his employees without further ado. As soon as the employer violates morality, good faith or a legal prohibition by giving notice, this notice of termination is also ineffective.
Pitfalls for the employer can be, for example:
- the prohibition of disciplinary measures according to § 612a BGB
According to § 612a BGB, the employer may not disadvantage an employee because he is exercising his rights. For example, if you refuse to work inadmissible overtime and the employer then gives notice of termination, this is ineffective because of the prohibition of disciplinary measures.
According to § 612a BGB, the employer may not disadvantage an employee because he is exercising his rights. For example, if you refuse to work inadmissible overtime and the employer then gives notice of termination, this is ineffective because of the prohibition of disciplinary measures.
- the prohibition of discrimination
In the event of dismissal, for example, the employer may prefer full-time employees not part-time employees. Likewise, he must not let it be seen that he is dismissing an employee, for example because the employee is female or older than other employees. In these cases the prohibition of discrimination applies. Even then, termination is ineffective.
In the event of dismissal, for example, the employer may prefer full-time employees not part-time employees. Likewise, he must not let it be seen that he is dismissing an employee, for example because the employee is female or older than other employees. In these cases the prohibition of discrimination applies. Even then, termination is ineffective.
- Works council hearing
According to Section 102 of the Works Constitution Act, a works council (if there is one) must be heard before a notice of termination is given. The works council must be informed of the reasons for the termination. Here the employer is obliged to provide truthful information. He cannot therefore hear the works council on reason "A" and then terminate the job for another reason "B". A termination is ineffective without proper consultation of the works council.
- Special protection against dismissal
In addition, there is special protection against dismissal, which applies to certain groups of people named below.
In addition, there is special protection against dismissal, which applies to certain groups of people named below.
Pregnant women are particularly protected by the Maternity Protection Act (MuSchG) at work. They must be protected in particular from losing their job and from physical overexertion. The special protection against dismissal applies to: White-collar workers, temporary workers, trainees, temporary workers, mini-jobbers, interns, domestic workers, schoolgirls, students, part-time workers, volunteers.
According to § 9 MuSchG, the special protection against dismissal already applies from the beginning of pregnancy up to the end of 4 months after childbirth and regardless of the duration of the employment relationship and the size of the company.
(If necessary, include further information on maternity leave here?)
Severely disabled
A person with a degree of disability of at least 50 is considered severely disabled. This is determined by the competent authority of the district or the independent city on request.
If you have a degree of disability of at least 30, you can apply for equality. If the application is approved, you have the same rights as a severely disabled person with a degree of disability of at least 50.
In principle, all companies should enable people with a disability to participate in working life. Special protection against dismissal also applies to severely disabled employees.
So if there are circumstances that make the dismissal of a disabled employee necessary, the works council, the representatives of the severely disabled and the integration office must be informed.
A termination is ineffective without the consent of the responsible integration office.
The integration office can no longer help, however, if a termination agreement has been signed by the employee or if the employment relationship has only existed for less than six months.
Works council members
Anyone who is a member of the works council in their company generally enjoys protection against dismissal in accordance with Section 15 of the KSchG. The exception to this is, for example, if the operation is completely shut down.
Of course, a member of the works council is not allowed to behave like an ax in the forest! Because he can also be terminated extraordinarily. For this, the employer must give an important reason within the meaning of Section 626 (1) BGB and also obtain the consent of the works council for the termination. In addition, it is also possible for the labor court to give its consent to extraordinary termination on application if this is not given by the works council.
From the above it is clear that there are a large number of regulations that must be taken into account. Only the labor court can answer whether a dismissal was ultimately rightly pronounced.
If we find out during our examination that your dismissal, whether small business or not, whether general dismissal protection or not, is or could be ineffective, we will bring an action for dismissal protection for you within 3 weeks after delivery of the dismissal.
According to the KSchG, this means that either the employment relationship has to be continued or you may receive a severance payment in return for the termination of the employment relationship, in other words: You can "buy off" your right of action to continue the employment relationship.
What exactly is a severance payment?
In German labor law, the severance payment is a one-off payment made by the employer to the employee on the occasion of the termination of the employment relationship.
In the case law, a rule of thumb applies to the amount of half a (to full) gross monthly salary per year of employment. As a rule of thumb, this does not always have to be applied in exactly the same way, but the past has confirmed this.
It should be noted that a severance payment is not a salary that is subject to contributions because, according to the case law of the Federal Social Court (BSG), it cannot be assigned to the time of the terminated employment relationship, because the severance payment is paid due to the loss of future earning opportunities.
You therefore do not have to pay any social security contributions from the severance payment, ie no amounts are deducted for pension, health, long-term care and unemployment insurance.
However, a severance payment is subject to taxation in accordance with the rules on income tax deduction.
In connection with the payment of a severance payment, pitfalls must also be observed in order to avoid further problems with the employment agency, which pays unemployment benefit I in the event of unemployment.
This applies even more if you are offered a termination or liquidation agreement by the employer. Another reason not to sign this unchecked. Because there is a threat of sanctions by the employment agency in the form of blocking periods and blocking periods!
What does the dismissal protection procedure actually cost you?
In dismissal protection proceedings, the statutory attorney's fees are based on the amount in dispute in the proceedings. In the pure dismissal protection procedure, the amount in dispute is 3 gross monthly wages.
In labor law it is also important to know that, according to Section 12a of the Labor Court Act, each party bears the costs of its own lawyer in the first instance, ie before the labor court. As a rule, it is not possible for the other side to bear the costs if they lose the legal dispute.
If, for financial reasons, you are not in a position to meet the costs of the legal dispute yourself, we will be happy to apply for legal aid for the labor court procedure.This is usually paid if the dismissal protection suit has the prospect of success and the employee concerned has the Can't pay the costs of the litigation itself. To do this, you must present your personal and economic circumstances in the form, and we will be happy to assist you in filling out the form.
If legal aid has been approved, you must note that the labor court is entitled to reclaim the costs within four years, e.g. in the form of installment payments. If, within four years, the economic situation of a person who previously only had a low income and therefore received legal aid, has to inform the labor court of a significant improvement in living conditions. An improvement in income is essential if the difference to the previously assumed gross income does not just exceed € 100.00 once. The omission of previously considered burdens must also be communicated without being asked. This must be taken into account when applying for legal aid.
Of course, we are also happy to take over the processing of legal fees through legal protection insurance, provided that you have taken out one for labor law.
Precisely because of the fact that each party in the dismissal protection process has to bear their own legal fees, such legal protection insurance is ideal in labor law.
CONCLUSION
Regardless of whether general or special dismissal protection, small business or not, with legal protection insurance or not: If you have any kind of trouble at work, make an appointment with a lawyer for advice on labor law sooner rather than later!