With the exception of terminations without notice and certain extraordinary terminations, employers and employees must adhere to fixed notice periods. Notice periods are based on the German Civil Code (BGB), collective agreements and agreements in employment contracts.
If these deadlines are not met, the termination can be declared invalid. Likewise, if notice is not given on time, disadvantages may arise if unemployment benefit or citizen's allowance is applied for following the employment relationship. It is therefore essential to observe and review the notice period.
Notice periods in the BGB - Fundamentals
If no notice periods have been agreed for a job under a collective agreement or individual contract, the notice periods of the German Civil Code (BGB) apply.
Termination without notice in accordance with Section 626 BGB always takes effect immediately. However, it must be given within two weeks of the incident leading to the termination. In the case of other extraordinary terminations, for example due to plant closures, the deadlines set out in Section 622 BGB must be observed.
Employment relationships for which a probationary period of no more than six months has been agreed may be terminated with two weeks' notice. If no probationary period has been agreed, the employment relationship may be terminated by either party with four weeks' notice to the 15th of the month or to the end of the month.
More generous notice periods apply to employment relationships that have been in place for longer. After two years with the company, the notice period is one month to the end of a calendar month, after five years two months to the end of a calendar month. After eight years, the notice period is three months, after ten years four months, after twelve years five months, after 15 years six months and after 20 years seven months, in each case to the end of the following calendar month. These longer periods serve to protect the employee; they only apply to notices of termination issued by the employer. Employees, on the other hand, may invoke the four-week notice period in accordance with Section 622 (1) BGB at any time.
Certain groups of people are entitled to extended protection against dismissal, such as pregnant women and employees on parental leave, severely disabled persons and persons of equal status or works councils. This individually improved protection against dismissal is laid down in various pieces of legislation. We will be happy to advise you on which notice periods are relevant for you.
The provision in Section 622 of the German Civil Code (BGB) is the minimum that applies to terminations. Shorter notice periods may not be agreed either in collective agreements or in employment contracts if the employment relationships do not fall under the exceptions of Section 622 (5) sentences 1 and 2, for example for short-term employment relationships.
Collective bargaining deadlines - improvements for employees
Trade unions and employers or employers' associations as their associations negotiate collective agreements that also contain special notice periods. These regulations are made in the interests of employees, which means that employers must comply with longer notice periods than those stipulated in Section 622 of the German Civil Code (BGB). For example, according to the collective agreement, employers can only give notice at the end of a quarter, giving employees more time to look for a new job.
Trade union members in particular benefit from this, but the more advantageous notice periods often also apply to other employees in a company. However, there are exceptions to the rule. For example, it is possible to set a notice period of just one month - to the respective calendar day - instead of four weeks to the end of the month. This notice period must then apply to both parties.
However, a shorter notice period than the statutory notice period may never be agreed. Nor is it permitted to grant employers a longer notice period than employees.
Individually agreed notice periods - advantages and pitfalls
Both employees and employers are free to stipulate longer notice periods in the employment contract. The same applies here: the notice periods for the employee may not be longer than those for the employer.
However, there should always be proportionality. The Federal Labor Court recently had to deal with a legal dispute in which an employee sued his employer. Both parties had agreed in a supplementary agreement to the employment contract that a three-year notice period to the end of the month should apply. The employer combined this unusually long notice period with a salary increase. However, this was fixed for three years and subsequent increases would only have been possible after at least two years.
As tempting as the salary increase - from 1,400 euros to 2,400 euros - may have been for the employee, he had not considered the consequences of the long notice period. Two years after concluding the supplementary agreement, the employee resigned because a monitoring program had been installed on his computer at the company. He complied with the statutory notice period of four weeks to the end of the next calendar month. However, the employer wanted to insist on the three-year period.
As the court of last instance, the Federal Labor Court ultimately ruled that this extremely long deadline constituted an invalid clause. This would put the employee at an unreasonable disadvantage (case no. 6 AZR 158/16).
Ambiguities and differences also arose recently in another case. In this case, the employer and employee had an employment contract that covered both the probationary period and the permanent employment relationship that continued thereafter. At the same time, it was stipulated that a notice period of six months should apply.
The employer terminated the employment relationship during the probationary period, but with the two-week notice period stipulated by the German Civil Code. Due to the vague description of the notice period in the employment contract, which was not separated into a probationary period and a permanent employment relationship, the court considered it to be the case that the employee could invoke the six-month notice period. In doing so, it referred to the ambiguity provision pursuant to Section 305c (2) BGB.
There was no indication in the contract that the six-month period would only apply after the end of the probationary period. Although it would still have been possible to agree a longer notice period for the probationary period than under Section 622 BGB, this would have had to be set out in writing.
It is therefore sensible and important to seek advice from a lawyer experienced in employment law before signing a customized employment contract - not only because of the notice periods, but also because of other clauses. Gaining knowledge in advance saves lengthy and expensive processes, creates clarity and forms the basis for good cooperation.
