Social criteria for termination

Social criteria for termination - Sozialauswahl

October 13, 2020

An ordinary dismissal for operational reasons must be "socially justified" according to section 1 of the Dismissal Protection Act (KSchG). To this end, the KSchG must first be applied. This is the case if the employment relationship has existed for more than six months at the time of termination and if more than ten workers are employed in the enterprise.

Which criteria must be taken into account when making a social selection?

Section 1 (3) sentence 1 KSchG provides four criteria that have to be taken into account in the selection decision: Length of service, age, statutory maintenance obligations and the employee's severe disability.

How is social selection carried out in practice?

The employer must first determine which employees work at the same level in the company and can therefore be replaced. The group of employees determined in this way is what is known as a horizontal comparability. Social selection is then carried out in this group on the basis of the legally prescribed criteria. The members of the respective group are then ranked according to their need for social protection. Older employees are more in need of protection than younger ones. A longer period of employment also increases the need for protection, as does the existence of statutory maintenance obligations and the presence of a severe disability.

The employer can obtain the relevant social data from the personnel records. The employer is also free to question his/her employees. It is also possible to refer to the wage tax data if there is no reason to assume that this data is incorrect. Section 1 (3) sentence 1 KSchG does not indicate how the social aspects mentioned are to be put in relation to each other, which is why each of the four criteria is to be given equal importance. They are not ordered according to a supposed hierarchy or relevance and must always be considered and weighted as a whole by the employer. The prohibition of age discrimination must always be taken into account in the social selection process by interpreting Section 1 (3) sentence 1 KSchG in conformity with European law.

What are the so-called point schemes?

When reducing staff, employers often make use of point schemes through which points are assigned to the individual social criteria. It also gives information through which the need for social protection of the employees in the comparison group can be assessed.

Which employees are to be considered comparable for the social selection?

All employees who are interchangeable must be included in the social selection. Criteria that can be used in this examination are the vocational training as well as the practical experience and knowledge that the respective employees have. If there is comparability, these workers are horizontally interchangeable. In practice, the question will always be whether one employee can replace the other in the event of illness or absence on leave. Employees who have special protection against dismissal are not to be included in the social selection.

Do you need advice on social selection or do you have doubts as to whether social selection has been carried out correctly in your case? We would be happy to advise you on this. Make an appointment for an initial consultation.