Received a notice of termination

1. Five Answers for Initial Guidance

2. What You Should Do Now

Employment Law Practical Tip: Keep the original copy of the termination letter and its envelope. Make a separate note of the date on the letter, a known time of delivery or when it was placed in the mailbox, and the time at which you found the termination notice. Include any potential witnesses and existing records regarding delivery. This information helps distinguish between actual knowledge and legal receipt.

A letter may be considered legally received before you read it. In the case of a home mailbox, it depends on when, under normal circumstances, one would reasonably expect to become aware of it. Local conditions are relevant here; there is no fixed nationwide time for emptying mailboxes. Illness or a temporary absence generally do not prevent receipt.

Legal Background on Service: For a letter placed in a mailbox, what counts is the notice that would be expected under normal circumstances. Personal habits or an illness generally do not delay service; local conditions, however, may be decisive. The Federal Labor Court (BAG) has therefore ruled that a blanket assumption regarding the mailbox emptying time is insufficient (BAG, judgment of August 22, 2019 – 2 AZR 111/19).

For the lawsuit, timely filing with the labor court is generally what counts. A meeting with the human resources department, an objection to the works council, or negotiations regarding the severance pay amount do not preserve the three-week deadline. If the termination is not challenged in a timely manner, it may be deemed effective from the outset. Exceptions to the start of the deadline and the subsequent admission of a lawsuit require a separate review. Therefore, do not rely on a presumed extension of the deadline.

A notice of termination sent by email does not satisfy the legal requirement for written form. This also applies even if an electronic signature is used (Section 623 of the German Civil Code (BGB)). The three- week period specified in Section 4, sentence 1, of the German Employment Protection Act (KSchG) is based on the receipt of a written notice of termination. Nevertheless, have the nature of the statement in question verified promptly and determine whether any additional letters of termination have been received.

A termination agreement differs from a notice of termination: it is only valid if both parties agree to it. Therefore, carefully review every termination agreement and every waiver of claims before signing; the wording of an acknowledgment of receipt should also confirm only the receipt of the letter. If another notice of termination is received later, it should be included in the legal review immediately.

2.1 The Employment Agency has its own reporting deadlines

If you learn of the termination of your employment less than three months before the termination date, you must generally register as a job seeker within three days of becoming aware of it register as a job seeker. This can also be done online with the Federal Employment Agency. If you register as a job seeker late, a waiting period for unemployment benefits may apply. Otherwise, you are generally required to register as a job seeker no later than three months before the end of your employment. This obligation applies even if you have filed a lawsuit for protection against wrongful termination. Registering for unemployment benefits is a separate process and requires a distinct step. Do not wait for the outcome of the wrongful termination proceedings to complete this step.

3. When general protection against termination applies

The Unfair Dismissal Protection Act (KSchG) requires a legally valid reason for an employer to issue a notice of termination under ordinary circumstances. As a general rule, the employment relationship must have lasted longer than six months. In addition, the company must exceed the relevant threshold for the number of employees: For employment relationships that began after December 31, 2003, the company must generally have more than ten employees ( Sections 1, 23 KSchG).

The size of the business is not determined solely by headcount but is calculated using employment quotas: Full-time employees count as 1; part-time employees working regularly up to 20 hours per week count as 0.5, and those working up to 30 hours per week count as 0.75; those working more than 30 hours per week count as 1. Apprentices are not included in this calculation. Transitional rules apply to existing employment relationships. Therefore, the size of your team or the group’s global workforce does not necessarily determine which company size is legally relevant.

Furthermore, the six-month waiting period is not the same as an agreed-upon probationary period. If general protection against termination does not yet apply or if the business is a small enterprise, other considerations remain important—in particular, the written form requirement, the notice period, and, where applicable, special protection against termination. Filing a lawsuit may also be advisable in such cases; the three-week deadline must not simply be ignored.

4. Termination for Operational Reasons in the Context of Workforce Reduction and Outsourcing

In the case of termination for operational reasons, the key issue is whether urgent operational requirements preclude your continued employment. Three questions are particularly important for the individual assessment: Has the need for your specific role ceased to exist? Is there a suitable alternative position available? Was the statutory social criterion observed when selecting the affected employees?

Social selection criteria include length of service, age, support obligations, and severe disability. First, however, it must be clarified which employees are actually comparable. Exceptions may also play a role. A blanket statement such as “the department is downsizing” does not replace this assessment. Conversely, long-term employment alone does not guarantee a right to be spared.

Hypothetical example: A project manager is to be let go after eight years with the company because her current role is being eliminated. At the same time, internal job openings have been posted for which her qualifications might be relevant. For the assessment, the job duties, requirements, and employment opportunities are specifically compared. The open positions do not automatically decide the case, but they do provide grounds for a closer examination of continued employment.

In the case of outsourcing, it must also be determined whether a business or part of a business is being transferred to a new owner. If a transfer of business has occurred, the employment relationship may be transferred to the new owner by operation of law. A termination based specifically on this transfer is invalid; terminations for other reasons remain possible ( Section 613a(4) of the German Civil Code (BGB)). Whether an outsourcing meets the requirements for a transfer of business must be determined on a case-by-case basis. Before you sign a new contract or object to the transfer, you should therefore assess the consequences.

5. Additional Grounds for Termination and Changed Working Conditions

A termination for cause is based on an alleged breach of duty. In cases of controllable conduct, a written warning is generally required first; in cases of particularly serious breaches of contract, a written warning may not be necessary, and termination without notice may be considered. The same may apply if there is no prospect of a change in behavior. The law does not require a fixed number of three written warnings. The article “ Warning Letters to Employees ” explains this context.

In the case of termination for personal reasons, the grounds lie in personal circumstances that impair the fulfillment of the contract. One of the most common cases is termination due to illness. In cases of frequent short-term absences due to illness, the key factors are a negative health prognosis, significant operational strain, and a balancing of interests. If the inability to work has lasted longer than six weeks within a one-year period, a workplace reintegration program (BEM) must generally be offered beforehand. Failure to provide a BEM does not automatically render the termination invalid, but it does increase the requirements on the employer to demonstrate that less severe measures and employment alternatives were considered. Appropriate less severe measures may preclude termination ( Federal Labor Court [BAG], judgment of November 20, 2014 – 2 AZR 755/13). The fact that you are currently on sick leave does not generally protect you from termination and, conversely, does not in and of itself justify termination due to illness.

Termination without notice requires good cause that makes it unreasonable to continue the employment until the end of the notice period or until the agreed-upon end date. Here, too, a written notice of termination must generally be challenged within three weeks of receipt.

In the case of a notice of termination with an offer of amended terms, the employer offers to continue the employment under different conditions. Depending on the situation, acceptance with reservation, subject to judicial review, may be considered. The reservation must be declared to the employer within the notice period, no later than three weeks after receipt; filing a lawsuit is an additional step. More information on this can be found in the article “Notice of Termination with an Offer of Amended Terms and Reduced Salary. ”

6. Form and Special Protective Rights Can Be Decisive

Termination of an employment relationship must be in writing. An email, a messenger message, or merely a scanned signature is not sufficient ( Section 623 of the German Civil Code (BGB)). In addition, the identity of the signatory, the authority to act on behalf of the employer, and the statutory, contractual, or collective bargaining notice period must be examined.

If there is a competent works council, it must be consulted before the termination. A termination issued without the required consultation is invalid. However, this does not mean that the works council can prevent every termination by voting “no.” For executives, the involvement of an existing committee of spokespersons may need to be considered instead.

Additional protection may apply, for example, during pregnancy and parental leave, for people with severe disabilities, or for certain positions in a representative body. The requirements, notifications, administrative procedures, and exceptions vary. Therefore, identify any relevant circumstances early on and submit any existing applications or official decisions. Even special protection against termination does not exempt you from filing a lawsuit for protection against termination in a timely manner.

7. Retain Your Job or Negotiate a Separation

A claim challenging a dismissal generally clarifies whether the contested termination has ended the employment relationship. If you wish to remain employed, this is the central question. If you are considering a change, the legal review can also be important for making an informed decision regarding a severance offer.

The oral hearing before the labor court begins with a conciliation hearing, during which an attempt is made to reach a settlement. Such a settlement can address the continuation of employment, a mutually agreed-upon termination, and any further claims. If the conciliation fails, the dispute proceeds to trial. An amount of severance pay is neither the automatic outcome of a lawsuit nor a general consequence of every termination. In addition to an agreed-upon payment, there are specific statutory avenues for claims, such as those under the provisions of Section 1a of the German Employment Protection Act (KSchG).

When considering an offer, you should therefore compare more than just the severance amount: When does the employment relationship end? What compensation is due until then? What happens to vacation time, bonuses, employment references, and other entitlements? What consequences might this have for unemployment benefits? The waiting period and suspension due to severance pay are separate issues. The article “Termination Agreement or Dismissal with Severance Pay ” explores this decision in greater depth.

Also clarify the costs in advance. In first-instance labor court proceedings, you generally have no right to reimbursement of your own lawyer’s fees from the opposing party, even if you win. Court costs and potential cost coverage must be considered separately. The article “Preparing a Claim for Protection Against Dismissal ” guides you through the necessary documents, the process, and preparation.

8. Additional Considerations for Executives

A high salary, personnel responsibility, or the title “Director” do not alone determine your protection against termination. Employee status, a managerial position under the German Unfair Dismissal Protection Act (Kündigungsschutzgesetz), and classification under the German Works Constitution Act (Betriebsverfassungsgesetz) have different requirements. For certain executives, special rules apply to the judicial termination of the employment relationship. For members of the executive board, protection against termination and the proper venue for legal action must be examined separately. Your specific role should therefore be legally classified before deciding on a strategy.

Equally important is the financial completeness of an offer. Bonuses, commissions, equity participation programs, and pension commitments are governed by their own regulations. They are not automatically addressed simply because an amount of severance pay appears reasonable. In cases involving foreign plans, executive contracts, or valuation issues, a supplementary review may be necessary. Missing performance targets are a separate focus in the article “Bonus Payment Without a Performance Agreement.

” Hypothetical example: A division manager is to sign an agreement providing for an amount of severance pay and immediate release from duties. The draft contains a comprehensive settlement clause but makes no clear statement regarding the annual bonus. Before reaching an agreement, it must be clarified which compensation items are affected and what should be expressly regulated. The employment reference, communication, and transition to the next position may also be important factors in his decision.

9. The review begins with these documents

• the termination letter and envelope, along with a brief note regarding handover, mailing, or the date it was found.
• Employment contract, amendments, and known collective bargaining agreements or company agreements.
• Start date of the employment relationship, job description, duties, and available information about the company.
• Documents related to the stated reason for termination, such as written warnings or legally valid notices regarding restructuring.
• Information regarding special protection against termination and any prior notifications or official decisions.
• Severance offers, pay stubs, and bonus and profit-sharing agreements.
• Your preliminary plans and any unanswered questions regarding your job, income, or career change.

Obtain and secure documents only to the extent permitted by law. If you are missing individual documents, this should not delay the timely review of the termination. You do not need to have answers to every question just yet as a first step.

10. Key Legal Provisions for Reference

• § 1 KSchG – Social Justification and Waiting Period
• § 23 KSchG – Scope of Application to the Workplace
• § 4 KSchG – Statute of limitations and special commencement of the period
• § 5 KSchG – Retrospective Admission of Late
• Lawsuits § 7 KSchG – Consequences of Missing the Statute of
• Limitations § 1a KSchG – Statutory Entitlement to Severance Pay Under Specific Conditions
• § 2 KSchG – Termination for Change and Acceptance with Reservations
• § 14 KSchG – Employees
• in Management Positions § 623 BGB – Written Form for Termination and Termination Agreements
• § 613a BGB – Rights in the Event of a Transfer of Business
• § 102 BetrVG – Consultation with the Works Council
• §§ 38, 158, 159 SGB III – Notification and Consequences for Unemployment Benefits
• § 12a ArbGG – Lawyer’s Fees in the First Instance

11. Case Law for Further Reading

Footnote 1 – Federal Labor Court (BAG), Judgment of August 22, 2019 – 2 AZR 111/19 – Access to a mailbox depends on the notice that can reasonably be expected and local circumstances; individual illness does not, in principle, prevent access.

Footnote 2 – BAG, Judgment of November 20, 2014 – 2 AZR 755/13 – In cases of frequent short-term illnesses, the prognosis, the burden on the employer, and a balancing of interests must be examined. Appropriate, less severe measures may preclude termination.