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Attention startups: What to look out for in the event of a termination | with sample termination
When a termination occurs, startups in particular often make unnecessary mistakes. We answer the basic questions about protection against dismissal in labor law.
Many startups have no clue which details are important in the event of a termination. For example, it plays a major role in the notice period, the reasons for a notice of termination and when and how it is submitted. In this article you will learn which basic legal provisions you have to pay attention to and how you can protect yourself from harm, both as an employer and as an employee.
How does a termination become legally valid?
Any termination is tied to formal guidelines that must be followed. In principle, the termination of an employment relationship must always be submitted in writing. Oral termination is only possible in the event of the termination of managing directors and board members, unless otherwise contractually agreed. You should therefore make sure to hand over the termination in writing. The termination must also be signed by a person who is also entitled to terminate. The signature can also be made by a person authorized to do so by the person entitled to terminate the contract. A reason for termination does not have to be stated in the written termination, but can be requested by the employee in the event of termination without notice. In practice, the reasons for the termination are usually not stated in the termination, but only communicated orally at most.
What types of termination are there?
A distinction is made between timely or "ordinary" termination and termination without notice or extraordinary termination. In certain exceptional cases, extraordinary termination is also associated with a notice period.
How long is the notice period for ordinary termination?
If an “ordinary” termination is legally effective, the employment relationship will continue until the end of the legally stipulated period. Alternatively, a deadline that deviates from the statutory one can also be agreed in the employment or collective bargaining agreement or a works agreement. A shorter period than the statutory one is only possible in certain exceptional cases.
Notice period in the event of termination by the employee
If the employee resigns, the statutory notice period is four weeks, either by the 15th or the end of the month. A longer period can also be contractually agreed. However, the notice period in the event of termination by the employee may not be longer than the period of notice in the event of termination by the employer.
Notice period in the event of termination by the employer
If the employer terminates the employment relationship, the law provides for various notice periods that depend on how long the employee to be terminated has already been working for the company. The exact deadlines can be found under § 622 BGB.
When can I give notice of termination without notice or for extraordinary reasons?
Termination without notice can only take place if there is an "important" reason that is so serious that the terminating party cannot be expected to comply with a notice period. In the event of a termination by the employer, this can be the case, for example, in the event of a refusal to work, violations of the company rules, theft, insults to employees, etc. Tanja Ruperti, specialist lawyer for labor law in Berlin, warns against jumping to conclusions in individual cases: “A clear statement regarding the classification of a reason for termination as important is only possible in the rarest of cases without knowing and considering the exact circumstances. There are no absolute grounds for termination in the law that entitle you to termination without notice in any case. Here, each termination must be viewed and assessed individually. ”You can find more information on this under Section 626 of the German Civil Code.
If the employee doubts that there is actually an important reason to terminate him without notice, he can bring an action for protection against dismissal and the labor court will decide this question. All circumstances of the individual case are taken into account
An employment contract must be terminated without notice within a period of two weeks (Section 626 (2) BGB). This period begins when the fact that is decisive for the termination becomes known. The termination without notice must be legally verifiable as an “appropriate reaction” to the situation on which the termination is based.
Extraordinary termination with an expiry period
Employees who can no longer be “properly” dismissed due to collective bargaining or company agreements due to a long period of employment can only be dismissed for cause. If the termination is due to serious misconduct on the part of the employee, the employer can, as in any other case, express it without notice. However, if the extraordinary termination occurs for operational reasons (e.g. due to a business closure), then the employer must comply with a so-called "expiry period". This expiry period usually corresponds to the longest possible statutory notice period (7 months).
Does the employee receive a severance payment in the event of termination?
In the event of termination, the employee generally has no claim to severance pay. However, if severance pay regulations have been agreed in the individual contract, the relevant collective bargaining agreement, the management contract or the social plan, the terminated employee is definitely entitled to a severance payment. In principle, a severance offer from the employee does not have to be accepted if the employee who has been terminated does not like it. In such a case, a dismissal protection suit can be filed.
For what reasons can an employment relationship be terminated?
The principle of proportionality must be applied to any termination by the employer. This states that a termination may only be considered if it is necessary to remove operational impairments and appears appropriate in relation to the intended purpose. Furthermore, a distinction is made between the following reasons for termination:
The personal termination
A person-related termination may take place if the employee no longer has the ability or aptitude to perform the agreed work according to objective criteria.
What can trigger a personal termination?
Such a termination can take place, for example, if an employee has frequent sick leave, loses his driver's license or if he has been sentenced to imprisonment. A termination due to illness is theoretically possible, but is bound by many regulations. Therefore, do your research beforehand and consult an employment law attorney who specializes in dismissals.
The behavioral termination
If an employee has behaved in an unacceptable manner - be it in the area of trust, the operational order, the secondary obligations or in the performance area - a termination may also take place depending on the assessment of the individual case. As a rule, the first step is one or more warnings and only after there is no change in behavior, the last consequence is the termination as a measure.
What can trigger a conduct-related termination?
Such a termination can take place if an employee is absent without excuse or refuses to perform contractually agreed work. This is also the case if he reveals trade secrets or if an employee who is “unable to work” carries out an activity that prevents his recovery.
The operational dismissal
In the case of redundancies for operational reasons, it is not the financial situation of the company that plays the central role, as is often wrongly assumed, but the fact that there is no longer any need for employment. As a rule, this is closely related to the company's finances, but this distinction in the argumentation is of fundamental relevance in the event of a company-related dismissal. In addition, a distinction is made between internal reasons such as rationalization measures or the like and external circumstances (e.g. decline in orders) that lead to a termination.
What can trigger an operational dismissal?
Such termination can be associated with sales difficulties. This can be, for example, a bad order situation and a lack of customers or lost sales, etc. If a company is partially financed by third-party funds, it can happen that these fail at some point and are no longer available to the company. This can also be a reason for termination for operational reasons. The cause can also be a fundamental change in operation, e.g. B. when new, difficult-to-use machines are introduced and / or the production process is completely changed.
For further questions about protection against dismissal, we recommend that you speak to a lawyer specializing in labor law.
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