What is a dismissal?
A dismissal is a unilateral declaration of intent which, upon receipt by the other party, normally ends the employment relationship.
In contrast, a termination agreement (Aufhebungsvertrag) is not a unilateral declaration and only becomes valid once both contractual parties agree to end the employment relationship.
Who can declare the dismissal?
The dismissal must be declared by the contractual partner—so in the case of an employer dismissal, by the employer. However, the employer may authorize other persons to issue it on their behalf.
If this authorization is not presented at the same time as the dismissal, the employee can reject the dismissal (§ 174 BGB).
If the dismissal was not signed by the employer personally, it should be carefully examined, if necessary with legal assistance. It is crucial to note that a dismissal must be rejected without undue delay (unverzüglich) if no power of attorney is provided. Courts generally assume this to mean a maximum of one week.
If the employee already knew about the person’s authorization or if it is evident from the commercial register (e.g., in the case of a Prokurist, an authorized officer), no separate power of attorney needs to be attached.
Is a verbal (oral) dismissal effective?
A verbally issued dismissal is ineffective. Under § 623 BGB, dismissal requires written form.
This also applies to dismissals by email or text message. In such cases, the employee generally does not need to file a lawsuit to contest the dismissal, since the law clearly specifies the legal consequence.
The same holds true for dismissals sent by email and/or fax, as they do not meet the requirement of written form (§ 126 BGB).
In practice, employers frequently give verbal notice. This often unsettles employees and leads them to make the mistake of ending the employment relationship themselves in writing, or ceasing to show up at work.
What are valid reasons for an ordinary (regular) dismissal?
The employer needs a valid reason to terminate the employment contract, provided the German Dismissal Protection Act (Kündigungsschutzgesetz) applies. Such valid reasons are:
1. Personal reasons (e.g., the employee’s illness),
2. Conduct-related reasons (e.g., insulting the employer), or
3. Operational reasons (e.g., closing a branch).
If a works council (Betriebsrat) exists, it must be consulted before the dismissal is issued.
What if the employer cannot prove that the dismissal was received?
For the dismissal to take effect, it must reach the other party.
Receipt (Zugang) simply means that the dismissal arrives within the other party’s sphere of control, for example, by dropping it into their mailbox or handing it over in person.
If the employer cannot prove receipt, then the dismissal has no legal effect.
However, the employee may not falsely deny receiving the dismissal during a dismissal-protection lawsuit, as this could amount to attempted or actual fraud in court.
When both parties are present, the dismissal takes effect immediately upon handover. When absent, it takes effect once it is reasonably expected that the other party could have taken notice (for instance, when it’s placed in their mailbox during normal mail-delivery hours).
Must the employee confirm receipt of the dismissal?
Sometimes an employer requests that the employee sign to confirm receipt of the dismissal.
The employee is not obliged to do this and should avoid putting their signature on the dismissal letter or any other document.
Typically, signing a receipt is not considered an acknowledgment of the dismissal’s validity. However, since there is no obligation to sign, doing so could potentially cause problems for the employee.
If the employee has already signed, merely confirming receipt is usually not harmful.
Problems arise if the employee signs a waiver of the right to challenge the dismissal.
Such an agreement should definitely be reviewed by a lawyer or specialist attorney for employment law.
Can the employer retract (withdraw) their dismissal?
Legally speaking, a dismissal cannot be withdrawn once issued. This is because dismissal is a formative right (Gestaltungsrecht) and cannot be subject to conditions.
Practically, however, an employer’s statement of “withdrawing the dismissal” can be interpreted as an offer to continue the employment relationship under the existing terms.
Thus, while the employer might incorrectly use the phrase “withdraw the dismissal,” in effect they are stating that they wish to continue employment.
This constitutes an offer to the employee, who can choose to accept or reject it.
This can complicate the dismissal-protection lawsuit. The employee may apply to have the court dissolve the employment relationship (Auflösungsantrag) if continuing to work for the employer is no longer reasonable.
If such an application is justified, the court often grants the employee a severance payment. However, in practice, this type of motion rarely succeeds.
Must a letter of dismissal be explicitly labeled ‘dismissal’?
The content of the dismissal must be clear and definite.
It is not necessary to use the specific term “dismiss,” as long as it is evident from the overall context that the employer or employee intends to end the employment relationship through a unilateral declaration.
Nonetheless, clarity is recommended to reduce any risk of misinterpretation.
Must the works council be consulted for every dismissal?
Often there is no works council in the company. If that is lawfully the case (i.e., no works council is required), then there is no need for works council consultation.
If a works council does exist, consultation is mandatory under § 102 of the Works Constitution Act (BetrVG) before the dismissal.
Failure to consult the works council makes the dismissal invalid.
If multiple dismissals are issued sequentially—such as an extraordinary dismissal followed by an ordinary one—the works council usually needs to be consulted each time.
Must the works council agree to the dismissal?
The law only requires that the works council be consulted (Anhörung).
The works council may consent or object to the dismissal, but this does not affect its validity, as long as the consultation process itself has been followed.
Does the reason for the dismissal have to be stated in the dismissal letter?
No. For a standard (ordinary) dismissal, the employer is not required to state the reason in the letter. However, the employee typically has a contractual entitlement to a subsequent explanation of the reason.
In cases of an extraordinary dismissal, § 626 BGB obliges the employer to disclose the reason if requested.
For dismissals in vocational training relationships, under § 22(3) of the Vocational Training Act (Berufsbildungsgesetz), the reason must be stated in the letter—failing which the dismissal is invalid.
Is it permissible to add new reasons for dismissal later (Nachschieben von Gründen)?
“Nachschieben von Gründen” occurs when the employer introduces different reasons for the dismissal later during the lawsuit, reasons not originally cited to the employee.
This is generally allowed provided these additional reasons already existed at the time the original notice was issued.
Which notice periods apply?
The ordinary dismissal of a worker or salaried employee typically requires four weeks’ notice, to the 15th or the end of a month (§ 622(1) BGB).
During a probationary period of up to six months, the notice period is two weeks.
Beyond that, under § 622(2) BGB, the four-week notice period increases step by step once an employee has worked for two years or more.
This extension applies only to dismissals issued by the employer.
After two years, the notice period is one month (note that one month is not four weeks!), after five years two months, after eight years three months, after ten years four months, and after twelve years five months—always to the end of a calendar month.
If the employment relationship has lasted more than 20 years, the notice period is seven months to the end of the calendar month.
May the employer agree on different notice periods in the employment contract?
Deviations under § 622(5) BGB are possible but subject to strict conditions.
Generally, employers may not deviate from statutory provisions to the disadvantage of the employee. One exception is the existence of universally binding collective bargaining agreements, for example in the construction industry (Bundesrahmentarifvertrag Baugewerbe), where shorter notice periods are often valid.
This is acceptable because, overall, the collective agreement typically provides more favorable conditions for the employee than the statutory defaults.
What if I am dismissed for sickness—what can I do?
Employees should know that a sickness-related dismissal (a form of personal dismissal) is often difficult for the employer to justify.
Many such dismissals are invalid. However, this only helps the employee if they file a dismissal-protection lawsuit, because otherwise the dismissal becomes effective after three weeks (§ 7 KSchG).
In practice, sickness-related dismissals are less common than operational or conduct-related dismissals.
Common employer mistakes in sickness-related dismissals include:
1. No BEM (Betriebliches Eingliederungsmanagement) was conducted,
2. No negative health prognosis is realistically foreseeable,
3. Insufficiently long or frequent periods of sickness,
4. No increasing trend in sick days over the last three years,
5. Already resolved illnesses or absences due to the employee’s children not being properly excluded.
What is a severance payment (Abfindung)?
In employment law, a severance payment is compensation paid by the employer to the employee for the loss of their job.
