Have you been given notice? Then it is important to act quickly. You can only defend yourself against termination if you find out about your rights and obligations in good time. We summarize what you should pay attention to in the event of termination and how best to act.
Form of termination
It is important to note that a termination that does not comply with the written form is formally invalid. This means that the letter of termination must contain the handwritten signature of the person authorized to give notice (e.g. HR manager, employer, managing director, etc.). If the letter does not contain a handwritten signature, this is a formal error and will render the termination invalid. If other persons - e.g. department heads- are to give notice of termination, they require a power of attorney. This power of attorney must be enclosed with the letter of termination. Otherwise, employees can immediately reject the dismissal due to a lack of authorization.
Termination by e-mail, fax or WhatsApp message is not sufficient for formal effectiveness. Even the written confirmation of a notice of termination that does not initially comply with the form cannot retroactively save the first, formally invalid notice of termination. Employers must prove that the notice of termination was received. Whether employees have actually read the notice of termination is irrelevant.
Necessary content and information
There are some details that a notice of termination must contain.
The letter of termination must clearly and unambiguously state that the employment relationship is to be terminated and at what point in time. If the employment relationship is to be terminated without notice, the letter of termination must state that the employment relationship will be terminated without observing the notice period. The term "termination without notice" does not have to be explicitly included. In the event of ordinary termination, employers must adhere to the notice period agreed in the employment contract or the statutory notice period. Collective agreements may apply to the employment relationship, which may also contain notice periods.
The reason for termination does not have to be stated in the letter of termination. However, in the case of termination without notice, employers must provide the reason for termination upon request. If they fail to do so, they may be liable for damages.
Works council hearing
An elected works council must be consulted before notice of termination is given. If the works agreement contains the provision that a dismissal may only be declared with the prior consent of the works council, the dismissal is invalid in this case even if the employer has only consulted the works council.
Effectiveness of the termination
In addition to the requirements already mentioned, the dismissal must be socially justified if employees enjoy protection against dismissal. A distinction must be made between general and special protection against dismissal.
All employees who have been employed in a company for more than six months and in which more than 10 employees are employed enjoy general protection against dismissal. Freelancers are not included in the number of employees. It must also always be checked whether there is a pseudo-self-employment and thus in reality an employment relationship to be taken into account. If both conditions are met, there must be a reason for termination for the termination to be effective. This means that the termination must have been given for reasons relating to the person or conduct of the employee or for urgent operational requirements. You can read here which requirements the individual grounds for termination must fulfill. The requirements are very high. Often these do not exist or cannot be sufficiently explained and proven by the employer. This increases the chances of being reinstated in the company or negotiating severance pay.
Certain groups of people enjoy special protection against dismissal. These include works council members, employees on maternity leave, employees on parental leave, employees with a severe disability or data protection, immission control and hazardous incident officers. What many people do not know is that in some federal states, council members, honorary mayors, aldermen and local councillors enjoy special protection against dismissal and can appeal to their private employers, who are usually unaware of this activity.
Special protection against dismissal means even greater protection against dismissal, as, for example, the prior approval of the authorities is required.
How to act correctly after receiving notice of termination:
Inform the employment agency in the event of termination
The employment agency must be informed of the dismissal in good time. Even if it is obviously ineffective or legal action against the dismissal is planned. Employees are obliged to register as jobseekers within 3 days. This period begins as soon as employees become aware of the termination date.
In addition, a second registration with the employment agency must be considered, namely on the day on which the employment relationship ends after the letter of termination, i.e. unemployment occurs. Employees must then also register as unemployed. If employees miss one of the two notifications, there is a risk of a suspension period.
Observe 3-week deadline for filing suit
As a result, it should be noted that the high requirements for the effectiveness of the dismissal can often not be met. This is the anchor for achieving reinstatement in the company or a severance payment. However, employees must adhere to the 3-week deadline for filing a complaint. This means that the complaint must be filed with the competent labor court. If employees miss this deadline, the dismissal is deemed to be socially justified, even if there is in fact no reason for dismissal. The dismissal can then only be challenged on formal grounds, e.g. lack of written form.
If you are unsure whether you are protected against dismissal, whether you should comply with the deadline for filing a complaint or how you should deal with the dismissal, book a free initial consultation with our employment law experts now at your preferred time.
