Kanzlei fuer Arbeitsrecht Schweier
Notices of termination – conduct-related, person-related, business-related – and notices of termination with the option of altered employment conditions

Careful preparation of a notice of termination is important to an employer in order not to be exposed to any or at least only to minor claims for severance pay respectively to the obligation to further employ the employee.

On the other hand, an employee will check whether the notice of termination given by the employer can be challenged either in order to achieve further employment or to successfully negotiate a remunerative severance pay.

The question whether the Protection against Dismissal Act applies to the employee, i.e. whether the effectiveness of the notice of termination requires social justification, is relevant to both parties, of course.

Legal advice applies to the assessment, preparation and execution of notices of termination:
Exceptional termination without notice for good cause:

Is there a good cause? Does this cause both generally and in the individual case justify termination of employment without notice? Is the two weeks’ period between gaining knowledge of the reasons for termination and giving notice of termination observed?
Conduct-related termination:

Was a prior warning given if the employee’s performance is concerned? Is the employee’s offence serious enough to justify a notice of termination, in general as well as in the individual case?
Person-related termination:

The most relevant sub-case in practice is a notice of termination given for illness-related reasons (long-term illness, frequent short-term illnesses, diminishing performance due to illness). Are the requirements developed by the courts met in the respective case?
Business-related termination:

It must be checked in particular whether urgent business requirements impede a further employment of the employee. Is there a managerial decision, which results in the elimination of a specific position? Was the employee with the least need of social protection selected from the pool of comparable / interchangeable employees of the business? Is there also no possibility to further employ the employee at a different vacant position within the company? Should the employer offer in the termination letter the statutory severance pay pursuant to section 1a Protection against Dismissal Act, although even the new law as of January 1, 2004 does not obligate him/her to make this offer?
Notice of termination with the option of altered employment conditions:

If primarily no final notice of termination shall be given but if only individual conditions shall be amended, a notice of termination with the option of altered employment conditions can be considered, unless the employee agrees to the amendments. When does this make sense and when is this legally enforceable? How should declaration and content be drafted?
Notice of termination based on suspicion:

In case of a possible serious offence of the employee, notice of termination based on suspicion may be given. What are the advantages of a measure like this? What particularities have to be observed?
In addition, there are the following topics:
  • Delivery of the termination letter (proof of receipt by the employee))
  • Formal requirements
  • Notice periods
  • Provisions for protection against dismissal
  • Severance pays
  • Hearing of the works council
  • Possibly consent of authorities required (e.g. integration office, trade supervisory office)
  • Reconciliation of interests and social plan, mass dismissals (please see Employment Law in Strategic Decisions: Changes in Operations respectively Mass Dismissals)
  • Examination whether an employer runs the risk of being obligated to reimburse unemployment benefits, which the laid-off employee is paid by the employment office later