Protection against dismissal

Protection against dismissal / Kündigungsschutz

November 03, 2023

According to section 1 (1) of the Protection Against Dismissal Act (KSchG), a dismissal is "legally invalid" if it is socially unjustified.

Even if section 1 of the Protection against Dismissal Act (KSchG) is clear at first glance, it is important to note that the protection against dismissal provided by the KSchG does not apply to every employee. Rather, the KSchG establishes special regulations that only apply in certain cases. If the KSchG is not applicable, only the general regulations for the protection of the employee against dismissal apply.

Workers

First of all, the person who wants to invoke the lack of social justification of a dismissal must be an employee within the meaning of the KSchG. This follows from the wording of section 1 (1) KSchG. Accordingly, persons who are not employees do not enjoy protection against dismissal under the KSchG. The term employee is not legally defined and is used in distinction to self-employment. According to the common definition in case law, an employee is someone who provides a service under instructions and under the control of others. The characteristic of the employee is therefore "personal dependence". What exactly is meant by personal dependency cannot be conclusively described - often this element is already the first "stumbling block", because especially in the changing world of work with new employment models such as "bogus self-employment", the image of the classic employee has become more and more diluted. It should be noted, however, that the more "unfree" the person is in his or her decisions, the more likely it is that he or she is an employee.

However, it is clear that the protection against dismissal does not apply at least to self-employed persons who provide services within the framework of a freelance service contract or a contract for work and also to persons similar to employees, freelancers and persons who are employed under public law.

Employment in the company

Section 1 (1) KSchG continues to require that the employee is employed in a company. However, this characteristic is only intended to exclude employees in the household from the scope of application of the KSchG. The KSchG thus applies without restriction to persons employed in service industries without a classic "business", or persons employed in home work or telework.

Waiting time

Furthermore, section 1 (1) of the KSchG stipulates that protection against dismissal only begins after six months of uninterrupted employment. This feature is called the "waiting period" and must not be confused with the "probationary period", which is agreed in many employment contracts, even if the waiting period is usually also fulfilled after the probationary period.

The waiting period creates a legal probationary period. The employer should have the opportunity to first get to know the new employee and to terminate the employment without the special barriers of the KSchG.

Minimum size of the holding

According to section 23 (1) KSchG, general protection against dismissal usually only exists in companies in which more than ten workers are employed. This follows the legislator's intention that the protection against dismissal under section 1 KSchG should not apply to so-called "small businesses". However, for workers whose employment relationship began before 1 January 2004 in a company in which more than five workers are regularly employed, excluding those employed for vocational training, the general protection against dismissal of the first section applies according to section 23 (1) sentence 2 KSchG.

When calculating the size of the enterprise, only employees are to be counted. However, the characteristic of "normally employed workers" means that workers who are not currently working, e.g. because they are on maternity leave, must also be included. Accordingly, when calculating the number of employees, no cut-off date calculation is to be made, but rather the number of employees should be determined that is characteristic for the enterprise.

Ordinary termination

Section 1 KSchG is only applicable to ordinary termination. Section 626 of the German Civil Code (BGB) continues to apply to extraordinary terminations, regardless of the existence of the other requirements. Whether a termination has been declared ordinary or extraordinary is to be determined by interpretation. In principle, however, an ordinary notice of termination is given in due time, whereas an extraordinary notice of termination is given without notice.

When is a dismissal socially unjustified?

If the protection against dismissal according to section 1 KSchG is applicable, the actual examination of the social justification of the dismissal is carried out according to section 1 (2) KSchG. According to section 1 (2) KSchG, a dismissal is socially unjustified if it is not due to reasons that lie in person or conduct of the employee or due to urgent operational requirements that stand in the way of the employee's continued employment in the enterprise.

Dismissal for personal reasons, section1 (2) sentence 1 case 1 KSchG

The dismissal is socially justified if it is due to reasons that lie in the person of the employee. This is also referred to as "person-related dismissal". In the case of dismissal for personal reasons, the employee is dismissed because he/she is no longer able to perform in accordance with the contract due to personal abilities, or because of his/her characteristics or non-blamable attitudes.

You can read here under which conditions a dismissal can be based on the person of the employee.

Dismissal on grounds of conduct, section 1 (2) sentence 1 case 2 KSchG

The difference between dismissal for personal reasons and dismissal for reasons of conduct is that the employee must have culpably violated his/her duties under the employment contract in order to be dismissed for reasons of conduct.

You can read here under which conditions a dismissal can be based on the employee's conduct.

Termination for operational reasons, section 1 (2) sentence 1 case 3 KSchG

Finally, a dismissal is socially justified if it is based on urgent operational requirements, i.e. if it is "operational". Termination for operational reasons is understood to mean the classic "elimination" of a job.

Read here under which conditions a dismissal can be based on urgent operational requirements.

Legal action against dismissal

If the employee is of the opinion that a notice of dismissal given to him/her is not justified, he/she must bring an action for protection against dismissal.

You have been dismissed and consider the dismissal to be invalid? Then make an appointment for an initial consultation.