Protection against dismissal: validity, period of action and small businesses

When does the Dismissal Protection Act apply?

The Employment Protection Act (KSchG) only applies if you work in a company that employs more than five employees (excluding trainees). Part-time employees are taken into account as follows:

• With a weekly working time of less than 20 hours with 50 percent
• With a weekly working time of up to 30 hours with 75 percent
• With a weekly working time of more than 30 hours with 100 percent
Außerdem können Sie sich erst auf das Kündigungsschutzgesetz berufen, wenn Sie ohne Unterbrechung länger als sechs Monate in demselben business beschäftigt gewesen sind.

Der Kündigungsschutz nach dem Kündigungsschutzgesetz wird auch allgemeiner Kündigungsschutz genannt. Daneben gelten für bestimmte Gruppen von Arbeitnehmern besondere Kündigungsschutzbeschränkungen, so z. B. nach dem Schwerbehindertengesetz, dem Mutterschutzgesetz (Maternity Protection) oder dem Bundeserziehungsgeldgesetz (Elternzeit).

How does the general protection against dismissal work?

A notice given to an employee to whom the Child Protection Act applies is legally ineffective if it is socially unjustified (1 (1) KSchG). The termination is socially unjustified if there are no personal, behavioral or operational reasons for it or if the works council has objected to the termination.

However, the Dismissal Protection Act only develops its protective function if you contest the dismissal within three weeks of receipt by filing a dismissal protection suit before the labor court. If you do not make use of this option or do not make use of it in due time, the termination - even if it was socially unjustified - becomes fully effective.

When are personal reasons for termination?

This is understood to mean deficiencies in the person, the personal circumstances or the characteristics of the employee, through which he is no longer able to perform his contractual duties and which disrupts the operational or economic interests of the employer.

• Inadequate suitability
• Prolonged illness
• Frequent short illnesses
• Reduced performance due to illness
• Age reasons
• Loss of driving license.

A termination for personal reasons is only justified if, after weighing the interests of the employee and the employer, the termination of the employment relationship is to be viewed as a socially appropriate and appropriate means. In all cases, the employer is required to present and provide evidence.
If an employee is to be dismissed for reasons of illness, for example, the following requirements must be met:

• In the past, there must be longer absenteeism due to illness and (at the time of termination) a negative prognosis regarding the further state of health.

• The absences that have already occurred and those expected on the basis of the forecast must lead to a considerable impairment of the company's interests.

• After a weighing of interests, the significant impairment of the company's interests must lead to unreasonable burdens for the employer.

Thereafter, a termination due to a long-term illness is only effective if you have been sick for a long time in the past and your illness-related absence is to be expected in the future. According to case law, downtimes of more than 20 percent of the company's working time per year for two or more years are considered considerable.

The time of termination is decisive for the forecast. Then z. B. frequent short illnesses indicate an increased susceptibility to illness and thus justify a negative prognosis.

In addition, your illness must have led to significant disturbances in the company, e.g. B. if your failure has resulted in a loss of customer orders or production losses. However, complaints from colleagues about increased workload can also be assessed as a specific operational impairment.

After all, there must be no bridging options (such as the use of temporary workers, your transfer in the company) to eliminate these operational disruptions. There must have been an unreasonable economic burden for the employer.

A termination due to a decrease in performance due to illness is justified if you are in fact no longer able to perform your contractually agreed work. In this case, too, it must not be possible to transfer it to another workplace within the company.
Alcohol addiction is also to be rated as an illness. In this case, the employer may therefore only terminate the contract if the employee's rehab has been unsuccessful or has been rejected by the employee.

What are behavior-related reasons for termination?

These are grounds for termination that result from the employee's behavior towards the employer, his work colleagues or third parties (e.g. business partners) and that directly affect the employment relationship. The majority of cases involve breaches of contract with the employer (such as insults, theft) or misconduct towards colleagues (e.g. physical attacks, sexual harassment).

However, only behavior that directly affects the employment relationship can lead to a termination. Therefore, misconduct in the off-duty area is usually irrelevant.

Before a conduct-related dismissal, the employer must also weigh up interests. As a rule, at least one -> warning must have preceded it. Only in the case of very serious breaches of contract (e.g. embezzlement of company funds), a warning before the termination can be dispensed with.

When are operational reasons for termination given?

Operational reasons for a termination are all internal or external circumstances that make the further employment of an employee superfluous (such as a lack of orders or sales, the closure of a department).

The reasons must be serious and the termination must be the last resort in order to meet the operational requirements. Before issuing an operational dismissal, the employer must check whether another, less drastic measure than the dismissal is possible, e.g. B. a transfer, further training, retraining or possibly employment under changed conditions (change notice).

In addition, before issuing a termination notice, the employer is obliged to make a selection from several eligible employees based on social criteria. He must take the following criteria into account:

• The age of the employee
• The family circumstances (especially any maintenance obligations) of the employee
• The length of service with the company
• Possibly assets or debts of the employee
• The worker's prospects in the labor market

The employer must carefully examine and weigh up these points and select the "socially least vulnerable" employee in each case.

This "social selection" includes all employees of a company who are comparable with one another on the basis of their training and occupation. In principle, the selection must be made by the employee who is least burdensome by the termination - taking into account all the circumstances.

According to the case law of the Federal Labor Court, the selection in favor of the socially weakest employee can be omitted if urgent operational reasons require the termination. This can be assumed, for example, in the event of a partial business closure, bankruptcy proceedings or rationalization measures.

In a dismissal protection process, the employer is obliged to present and prove the urgent operational reasons for the dismissal. In addition, he must disclose the criteria for his social selection. On the other hand, the employee has to justify which other colleague could have been dismissed.
In companies that have a works council, this must be heard before any dismissal. Otherwise the termination is ineffective. If the works council objects to a dismissal because the employer has violated the selection guidelines, then this dismissal is also socially unjustified.

What to do if you missed the deadline for filing a complaint?

The dismissal protection suit must be submitted to the labor court within three weeks of receipt of the notice of termination. As an exception, you can apply for the subsequent admission of your action if - despite the greatest care - you were unable to meet the deadline for action through no fault of your own. However, once the circumstances that have prevented you from filing the complaint in due time have ceased to exist, you must submit the application for subsequent admission of the complaint to the labor court within two weeks at the latest. This exception can only be made if no more than six months have elapsed since the termination.

You must substantiate the reason for the prevention by providing suitable evidence (e.g. medical certificate in the event of illness). Together with the application for subsequent authorization, the actual legal action must then also take place at the same time.

In principle, you cannot rely on legal ignorance to justify a subsequent admission of an action. An exception can only apply if, for example, your works council chairman has given you an incorrect deadline for filing a complaint. But you would have to prove this.

What if you win the dismissal protection process?

If the court determines that the dismissal was socially unjustified, that there was no good cause for an out-of-court dismissal or that the dismissal is ineffective for other reasons (e.g. in the absence of prior consultation with the works council), then your employment relationship will continue. This means that you are obliged to perform your work again and your employer has to pay you your wages again.

If you had "offered your workforce" to your employer before or during the dismissal protection process, he was put in "default of acceptance" in this way. Then you don't have to do this again after the judgment. Rather, your employer is now obliged to ask you to return to work.

The default of acceptance by the employer also means that he has to pay you the salary for the period between the termination and the judgment. This can also include bonuses (e.g. Christmas bonus) or other additional benefits.

If you have found another job in the meantime and are therefore no longer interested in the terminated job, you can now terminate the employment relationship on your part. In this case, you only have to explain to your employer within one week after the judgment becomes final that you refuse to continue your employment relationship with him (S 12 sentence 1 KSchG). The employment relationship then ends when your employer receives your declaration. If your employer is in default of acceptance, he must pay you the lost earnings until you start your new employment (5 12 sentence 4 KSchG).

Is there also protection against dismissal in small businesses?

The Dismissal Protection Act does not apply to employees in companies that usually only employ five or fewer employees (so-called small companies). In these cases, the dismissal protection lawsuit described is out of the question. Nevertheless, even then you do not have to be fundamentally defenseless against termination. According to the case law of the Federal Labor Court, employees in small businesses to which the Dismissal Protection Act does not apply can have a dismissal checked in court for its effectiveness in accordance with the principle of good faith in connection with the fundamental right to freedom of occupation (Article 12 of the Basic Law).

According to these legal provisions, in the event of dismissal for operational reasons, the employer must maintain a minimum level of social consideration when selecting the employee to be dismissed. From the point of view of good faith, he must weigh up the social concerns of the employee concerned. A termination that does not meet this requirement is contrary to good faith and is therefore ineffective.

Protection against dismissal - important judgments

Intended job savings
If an employer only intends to delete a few positions in order to achieve a so-called performance consolidation, this is not yet an entrepreneurial decision to be seen on which an operational dismissal can be based. In order to justify a termination for operational reasons, an entrepreneurial decision must already be implemented in the organizational area in such a way that there is no longer any need for the terminated employees to continue to be employed. The actual implementation of this decision can be fully verified in the dismissal protection process.
Thuringian LAG, April 20, 1998 - AZ: 8 Sa 739/96

Termination Access
For the calculation of the three-week period of action under the Dismissal Protection Act, the point in time at which the employee receives the notice of termination is decisive. If the notice of cancellation is sent by registered mail and the postman does not meet the recipient, the recipient does not have to collect the registered letter from the post office immediately. He can receive the letter at the post office within the seven-day retention period.
The notice of termination is therefore only deemed to have been received once the post office has handed over the registered letter. This also applies if the employee had to expect termination.
BAG, April 25, 1996 - AZ: 2 AZR 13/95

Missed grace period
If an employee is prevented from filing a dismissal protection suit with the labor court within the three-week period due to a stay in a clinic, he must submit his application for subsequent admission to the court no later than two weeks after discharge from the clinic. LAG Schleswig-Holstein, December 17, 1997 - AZ: 2 Ta 179/97

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