Notice rights have the purpose of giving the employee the opportunity to take appropriate measures in preparation for the termination. The obligation of the employer to adhere to certain notice periods and the length of these notice periods depend - amongst other things - on the characterisation of the termination and the duration of the employment relationship.
 For an ordinary dismissal (ordentliche Kündigung), advance notice must always be given, regardless of the circumstances of the dismissal. In most cases, the German Act on Protection against Dismissal (the Act) applies, allowing dismissal only for certain causes. If an employer employs more than five (or more than ten, if the employment in question commenced after 31 December 2003) employees, he must comply with the provisions of the Act. Accordingly, an employee who has been employed for at least six months may be dismissed only if the dismissal is justified by lack of capability, by conduct or for redundancy reasons.

The duration of the applicable notice period depends on the length of service and/or whether the employment is governed by an employment agreement, collective bargaining agreement or statutory provisions –  whichever provides for the longest notice period will apply.
The first six months of the employment can be agreed as a probationary period. During this time, the applicable notice period is two weeks for each party, unless otherwise agreed.
After the probationary period and until the employee has completed at least 2 years’ service, the minimum statutory notice period is four weeks to expire on the 15th or the last day of a calendar month. Thereafter, the statutory minimum depends on the duration of the employment as set out below. As this is only a minimum notice period, the employer may choose to terminate the employment relationship with a longer notice period. Until the end of the notice period, the terms of the employment contract must remain unchanged.

Duration of employment                                     Period of notice

2 years                                                              1 month (to end of month)

5 years                                                              2 months (to end of month)

8 years                                                              3 months (to end of month)

10 years                                                            4 months (to end of month)

12 years                                                            5 months (to end of month)

15 years                                                            6 months (to end of month)

20 years or more                                            7 months (to end of month)

In exceptional circumstances, where an employer has a reason to terminate an employment relationship for good cause (außerordentliche Kündigung), the employer may terminate the employment without notice. Such exceptional circumstances only arise where the continuation of the employment relationship can no longer be reasonably expected from the employer, for example, in the case of employee fraud or theft.

A fixed-term employment contract may only be terminated without cause, if expressly agreed in the employment agreement or collective bargaining agreement. Otherwise it will terminate automatically upon expiry of the fixed term unless exceptional circumstances apply . (see above).

If the parties wish to terminate an employment relationship outside the terms of the employment contract and without having to comply with the notice periods set out above, they may reach mutual agreement on this and enter into a termination agreement.

For further reading: Longer notice periods after longer employment periods do not constitute indirect age discrimination (see earlier post).


 

 

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