If you receive a notice of termination, you should act quickly. This is because the deadline for filing a claim challenging a dismissal gives you only a short period of time to challenge the termination. After that, you will lose your job and, in most cases, your severance pay as well.
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Our explanatory video provides an overview of the most important questions:
Claim Challenging A Dismissal—What Deadlines Must Be Observed?
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You can also find all the key information from the video here in detail for your reference:
Why is the deadline so important?
Once the deadline for filing a lawsuit has passed, your options for challenging the termination are significantly limited.
Both employees and employers want to know where they stand quickly after a termination. To give you that certainty, a termination automatically takes effect once the period for filing a lawsuit has expired— even if the termination was unlawful and you would actually have won your case in court! Once the notice period has expired, you can—as a rule—no longer take any action against the termination.
Example: Employer G does not like employee B. Therefore, he terminates her employment under a transparent pretext, without any valid grounds for termination.
The termination is unlawful. However, B allows the statute of limitations to expire and does not file a lawsuit. Once the statute of limitations has expired, even this obviously unlawful termination is considered valid. B can no longer do anything about it.
Only in rare cases can you still challenge your termination after the deadline has passed. We explain these exceptions in more detail below.
Even if you do not want to keep your old job at all and agree with the termination, you should act within the deadline. This is because you have a variety of options available to you:
- You can threaten your employer with legal action and, in many cases, negotiate a settlement agreement. By doing so, you waive your right to file a wrongful termination lawsuit and, in return, receive, for example, an amount of severance pay or a favorable employment reference.
- You can settle with your employer in court and negotiate favorable terms that way as well.
Seeking legal advice promptly can help clarify questions regarding the continuation of your employment or an amount of severance pay and ensure you stay on top of the applicable deadlines.
How do I meet the deadline?
As the term “statute of limitations” implies, you must file a lawsuit in court within the specified time limit. It is not sufficient to simply file an objection to the termination with your employer or the works council.
For someone without legal training, filing a lawsuit is very difficult to accomplish on your own. You will therefore need to find a lawyer within the deadline.
We will advise you, negotiate with your employer, and/or file a lawsuit on your behalf with the labor court.
How long is the deadline for filing a claim challenging a dismissal?
The deadline for filing a wrongful termination lawsuit is set forth in Section 4, Sentence 1 of the Unfair Dismissal Protection Act (KSchG) and is three weeks after receipt of the notice of termination.
“Receipt” in this context means that you were able to take note of the notice of termination under normal circumstances.
If your employer hands you the notice of termination in person, it is considered received immediately. For letters, however, receipt is deemed to have occurred when you would typically have had the opportunity to empty your mailbox.
If the letter is posted in the morning, this is often the case on the same day. A letter posted later in the day is generally not considered received until the next day. Mailboxes are usually not emptied on Sundays.
Example: Employer G personally places the written notice of termination in Employee A’s mailbox on December 7, 2020, at 8:00 p.m. Normally, however, the mailbox is not emptied in the evening but in the afternoon. Therefore, the notice of termination was not received until December 8, 2020. The three- week notice period now begins.
Example: Employer G personally places the written notice of termination in Employee A’s mailbox on December 7, 2020, at 8:00 p.m. Normally, however, the mailbox is not emptied in the evening but in the afternoon. Therefore, the notice of termination was not received until December 8, 2020. The three- week period now begins.
Please note: However, the courts are increasingly taking a wider range of circumstances into account in their assessments. For example, it may be relevant whether you work part-time or full-time. The specific circumstances of each case are therefore decisive.
In principle, the notice of termination can be deemed to have been received even if you were not at home, on vacation, or sick. The sole determining factor is the theoretical possibility of becoming aware of it under normal circumstances. After all, it is your responsibility to ensure that letters reach you.
Calculating the deadline can be very complicated in individual cases. Therefore, consult a lawyer as soon as possible to avoid accidentally missing the deadline.
For which types of terminations does the filing deadline apply?
In general, the filing deadline applies to all terminations. It does not matter whether the termination is for cause or without cause. It also does not matter whether the termination is based on conduct, personal reasons, or business reasons.
The deadline applies even in the case of termination of special types of employment relationships, such as during an apprenticeship.
Note: The filing deadline applies even if the Unfair Dismissal Protection Act does not actually apply. You must therefore keep the deadline in mind even in small businesses and within the first six months of your employment.
When, as an exception, does the deadline not apply?
If your employer did not give you written notice of termination, the deadline does not apply in this exceptional case. “In writing” means on paper and with a handwritten signature. Emails, text messages, Facebook posts, or WhatsApp messages are not sufficient. Verbal terminations are certainly invalid.
But even in these cases, you do not have an indefinite amount of time to challenge your termination. At some point, this right “lapses.” How quickly you need to act varies from case to case.
In a 2010 ruling, for example, the court held that an employee can no longer invoke the invalidity of the termination after seven months (Berlin-Brandenburg Regional Labor Court, Decision of August 16, 2010, Case No. 25 Ta 1628/10).
However, it’s best to play it safe and consult a lawyer as soon as possible.
The time limit does not begin to run even if the required official approval is missing. This is often the case with special protection against termination (e.g., for people with severe disabilities). The time limit for filing a lawsuit does not begin until the authority informs the employee of the termination ( Section 4, sentence 4, KSchG).
If the employer terminates the employment without prior approval from the relevant authority, the termination is invalid. In that case, the time limit does not apply. However, even here, the right to file a lawsuit may be forfeited if you wait too long.
What can I do if the deadline has passed?
Missing the deadline limits your legal options. In exceptional cases, however, the court may, upon request, allow late lawsuits.
To do so, you must demonstrate that you were unable to file a lawsuit due to exceptional circumstances.
Example: Employee C fled to the Maldives before winter, from December 1 to 25, 2020. Employer G knows this for certain based on the company’s vacation schedule and wants to seize the opportunity.
Before the vacation, G had informed C that he was not affected by the current round of layoffs. However, immediately after C’s departure, G drops the termination notice into his mailbox.
The notice of termination is received by C on December 1. The fact that C was on vacation does not affect the receipt of the notice. C does not discover the notice until after his return on December 25, 2020. The notice period has already expired.
If C were now completely unable to file a lawsuit, this would be unfair and through no fault of his own. After all, G knew full well that C was on vacation. Therefore, C can request that his belated lawsuit be admitted.
As soon as the circumstances that prevented you from filing the lawsuit no longer apply, you must file the motion within two weeks.
Example: Employee C has returned from vacation and realized he missed the deadline. He must now file the motion with the labor court within two weeks.
However, the deadline for filing the motion expires in any case no later than six months after the end of the originally missed deadline.
When Is It Worth Filing a Lawsuit?
The requirements for termination are varied. Your employer must take several factors into account. There are several common mistakes: In the case of
- termination for cause, a prior written warning is usually required.
- In the case of termination for business reasons, your employer must, on the one hand, conduct a proper selection process based on social considerations and, on the other hand, offer you a comparable position, provided one is available within the company.
- If your employer terminates your employment due to an illness, your illness must limit your ability to work not only currently but also in the future (negative prognosis).
- Your employer must consult with the works council before any termination.
- In addition, the employer must observe special protection against termination (e.g., for pregnant women, severely disabled individuals, or apprentices).
- In small businesses and during the first six months (probationary period), termination is significantly easier. However, even in these cases, dismissal may be unlawful if it involves discrimination or is arbitrary.
- If your contract is fixed-term, your employer can only terminate it in exceptional cases anyway.
As you can see, your employer can make many mistakes when terminating your employment. Whether filing a lawsuit is advisable depends on the individual case. In this context, the continuation of the employment relationship and the possibilities for reaching a settlement can be discussed.
Conclusion
The deadline for filing a wrongful termination lawsuit is three weeks. It is extremely important to meet this deadline. Otherwise, you will have little recourse to challenge the termination. There are only a few cases in which the deadline does not apply as an exception. In extraordinary circumstances beyond your control, the court may allow a late filing. However, deadlines must still be observed in such cases.
The requirements for a termination should be examined on a case-by-case basis. Once you receive the notice of termination, have it reviewed promptly to determine whether an action for protection against wrongful termination is an option.
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