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The German protection against dismissal is known for its employee-friendliness.
If you have a permanent position, you can feel safe, so the assumption - as long as you are not guilty of anything.
But it is not quite so in reality.
A termination is entirely possible, especially if a company is in financial difficulties.
The law firm Ratis and the tech company One Logic evaluated 785 cases of termination by employees with legal protection insurance in the past year.
With the result: 68 percent of the layoffs were operational.
Almost a quarter was about the person, nine percent about the behavior of the employee.
"The reasons for dismissals can be varied, but by no means all are permitted," explains Fenimore von Bredow, specialist lawyer for labor law in Cologne.
If there are doubts about the effectiveness of the termination, employees can file a dismissal protection suit with the competent labor court.
A lawyer is not absolutely necessary for this.
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In the best case, however, employees have already taken precautions: "Anyone who has had legal expenses insurance for more than three months at the time of termination does not have to fear any legal or court costs," explains Jörg Kraft, career advisor at Liebich & Partner management consultancy in Baden-Baden .
When taking out, however, you should make sure that the insurance also covers professional legal issues.
The prerequisite for a dismissal protection suit: By this point in time, employees must have worked for more than six months in a company that regularly employs more than ten full-time employees.
In addition, speed is of the essence: the lawsuit must reach the court within three weeks of receipt of the notice of termination.
"Illness or vacation are not considered an excuse for filing the lawsuit late," says Bredow's labor lawyer.
"If that is done, it is important to collect evidence by the court date."
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Because the court does not investigate the case, the so-called provision principle applies: The plaintiff, i.e. the person who has been dismissed, must convince the judge that the dismissal was not justified - and for example find witnesses or look for exculpatory documents.
In order to sound out whether a dismissal protection suit can be worthwhile, terminated employees should check the following points:
1. Formal errors: who signed the notice of termination?
It is worth checking for formal errors first.
Labor law provides a wealth of formalities that employers have to observe when they want to terminate an employee.
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Cancellations must always be made in writing and signed.
"A termination is only valid if the owner of a company, its managing director or its shareholders have signed it," says career advisor Kraft.
"The boss's secretary is not authorized to do so, as is the HR manager, if he has not received authorization from the boss."
Even if someone terminates an employee via email, messenger or verbally, the termination is not valid.
The same applies to dismissals where employers have not informed the works council in advance.
Another major mistake: employers terminate employees,
who enjoy special protection against dismissal.
This applies, for example, to people with disabilities, pregnant women and members of the works council.
Collective agreements can also stipulate that employees after a certain length of service or a certain age can no longer be properly terminated.
In these cases, only extraordinary termination is possible.
2. Termination for operational reasons: social choices can be wrong
If the formalities are correct, those affected should check the reasons for the termination.
Employers can issue an operational dismissal if, for example, they suffer from a drop in orders or close a production site.
But an operational dismissal is difficult to justify if companies see or only suspect a deterioration in the order situation for a short time, explains von Bredow.
"In a dismissal dispute, the employer must be able to present and prove reasons for the dismissal that can be verified by a court."
In the event of a termination for operational reasons, the employer must make a social selection that shows which of the employees concerned are least in need of protection - and which are the first to be dismissed.
“The social selection can also be fully checked by the court, it can be wrong,” says von Bredow.
As a rule, the last young employee who is neither married nor has children has to leave the company first.
Anyone who feels unjustly disadvantaged can try to get their job back in court - or negotiate severance pay.
3. Terminations due to illness are often not tenable
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Employees often have good chances in court if they are dismissed due to illness.
"In the rarest of cases they stand up in court," explains von Bredow's labor lawyer.
A classic example: An employee wants to terminate an employee due to his illness and the resulting absenteeism.
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If the absence of the sick employee restricts operational processes and cannot be compensated by colleagues, employers can issue a notice of termination.
"But it always depends on the future prognosis of the course of the disease," says the lawyer.
That means: if the attending physician testifies in court that the dismissed patient will be able to work again in the foreseeable future, the dismissal is not tenable.
4. Behavioral terminations: employers must issue a warning beforehand
Behavior-related dismissals, for example due to poor work performance or repeated late arrival, do not always stand in court.
“Employees must first inform their employees of their misconduct in the form of warnings and ask them to change their behavior accordingly,” says career advisor Kraft.
“Employees are often not even aware that they are not doing certain tasks correctly.” Then a dismissal would be disproportionate - and more intensive induction or further training would be appropriate instead.
5. Termination without notice: There must be serious reasons
For a termination without notice there must be a serious reason that justifies an immediate termination of the employment relationship before the period of notice has expired.
An example: If an employee insults his boss in front of an assembled team, steals from him or consistently refuses to work, this generally entitles him to terminate the contract without notice, says labor lawyer von Bredow.
"However, there are always cases in court in which the alleged reason for termination does not justify termination without notice," explains the lawyer.
If an employee mistakes an order or made mistakes in a project, this does not justify termination without notice - even in the case of negligent behavior, says von Bredow.
"Even in the case of termination without notice, it must always be checked whether there is another, milder means, such as a warning."
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Read more articles from our series of advice on termination here:
Everything about termination
This article was first published on July 17, 2019.