As an employer, you should consider the points in the following checklist if you wish to give notice to your employees:
- Written form
Notice of termination must be given in writing. Verbal termination, termination via WhatsApp or in any other similar form without an original signed document is invalid. The notice of termination must be signed by the employer or by a person authorised to represent the employer.
- Receipt
The notice of termination must be received by the employee. It is recommended that the notice be handed over personally with witnesses, alternatively sent by a messenger who drops the notice in the employee's letterbox or sent by post as a registered letter. It is the employer's responsibility to prove receipt of the termination letter.
- Letter of dismissal
As a rule, the letter of termination does not have to contain a reason. Exception: termination of a trainee after the probationary period. Even in the case of extraordinary termination, the employer must immediately inform the employee of the reason in writing if requested to do so. However, the notice of termination should contain a note that the employee must immediately register as a jobseeker with the employment agency responsible for him or her as of the date of knowledge. Finally, the employer must decide whether to grant the employee a revocable or irrevocable leave of absence, possibly taking into account any pro rata remaining leave or the employee's entire annual leave until the expiry of the notice period.
- Observe notice periods
The notice period must be calculated correctly. The notice periods for the employer may result from the employment contract, from a collective agreement or from the law.
- General protection against dismissal
It is essential to clarify whether the Dismissal Protection Act applies in your company. This is the case if you regularly employ more than 10 workers (since 01.01.2004). Note: Existing protection for old employees (previously the law applied to all companies employing more than 5 employees).
- Special protection against dismissal
You must check whether the employee enjoys special protection against dismissal and obtain approval from the competent authority, e.g. as a severely disabled person, person with equal rights, pregnant woman, employee on parental leave or on care leave.
- Special case: extraordinary dismissal, section 626 BGB
In the case of circumstances that may justify extraordinary dismissal, the facts of the case must be examined carefully. Extraordinary dismissal is without notice and requires an important reason. In addition, it must be unreasonable for the terminating employer to continue the employment contract until the expiry of the notice period. The extraordinary termination must be declared to the employee within a statutory two-week period. Keep in mind that most employees file a lawsuit against an unjustified or incorrectly declared extraordinary dismissal for the very reason that a blocking period is imposed by the employment agency.
- Works council consultation
If there is a works council, the employer must consult it before any dismissal.
- Mass dismissal, notification under § 17 of the Dismissal Protection Act (Kündigungsschutzgesetz)
Finally, you must see if you are dismissing a large number of employees and there is a duty to give notice under section 17 of the Unfair Dismissals Act (KSchG). This is determined by the number of employees regularly employed in the business and how many of them are to be given notice or offered a termination agreement within 30 days. For companies with 20 or fewer employees, there is no obligation to give notice.
How we can help you
You want to or have to give notice to an employee? You do not know whether extraordinary dismissal is justified in a specific case? Contact us! These tips cannot replace individual legal advice.
With the necessary intuition and professional competence, we help employers to prepare and implement the termination in a legally sound manner. With a consultation, you can save time and money on legal disputes, avoid having to re-employ dismissed employees and, most importantly, manage to build up a positive employer image for your company.
