If an employer desires to terminate an employee’s employment without cause, German law provides for statutory minimum notice period. This ranges from at least four weeks to the 15th or the end of a month where the employee was employed for less than two years to at least seven months to the end of a month if the employee was employed for more than twenty years by the employer. The notice periods are as follows:
- after two years of service: one month to the end of a month
- after five years of service: two months to the end of a month,
- after eight years of service: three months to the end of a month,
- after ten years of service: four months to the end of a month,
- after twelve years of service: five months to the end of a month,
- after fifteen years of service: six months to the end of a month and
- after twenty years of service: seven months to the end of a month.
Recently, the German Federal Labour Court was confronted with a case where a 28-year-old-employee was dismissed after 3 years of service and was given the statutorily required notice period of one month to the end of a month. She claimed that the differing treatment with respect to the statutory notice periods based on the length of service favours older employees, because they tend to reach longer times of service. Therefore, younger employees such as herself are discriminated by these rules. She argued that the longest possible notice period also applies in her case.
The German courts rejected her claims. The Federal Labour Court ruled that the differentiation of the notice periods indeed leads to an indirect disadvantage for younger employees. However, this indirect disadvantage is justified by the legitimate goal to grant loyal – typically older – employees a better protection against dismissals through longer notice periods. Therefore, the differentiation of the notice periods according to the length of service does not constitute an age discrimination.