Action for unfair dismissal filed: the next steps

Your employer has dismissed you. You have filed an action for unfair dismissal against this (with your lawyer if necessary). You did this at the competent labor court and within the statutory 3-week period. You have done everything right up to this point. What happens next for you? - This article informs you about the usual procedure for dismissal protection proceedings.

Hire a lawyer or fight it out yourself?

This question should be answered now at the latest. German dismissal law allows you to represent yourself in the first instance before the labor court. In this case, however, you should have done your legal "homework" and be able to keep your nerve. Your opponent in court, the employer, is usually represented by a specialist lawyer and will use all arguments to get out of the matter as lightly as possible. With advice and legal representation from a specialist lawyer, you significantly increase your chances of achieving an appropriate severance payment with your dismissal protection claim.

Step no. 1 after the action for unfair dismissal: the conciliation meeting

The labor court has sent your employer a certified copy of the dismissal protection claim. It will set a date for the conciliation hearing as soon as possible. Prompt usually means: 2 weeks after receipt of the action for protection against dismissal. The aim of the conciliation hearing - as the name suggests - is to reach an amicable settlement between the parties to the dispute. The judge, the employer's lawyer and you or your specialist lawyer are present. First, the employer's lawyer may present the reasons for dismissal to the judge. The judge then outlines the legal provisions of the Dismissal Protection Act for both sides and points out the possibility of ending a legal dispute through an amicable settlement. A settlement between employee and employer can bring advantages for both sides. As a dismissed employee, you ensure that you do not go away empty-handed in your action for protection against dismissal. This could be the case if the employment tribunal recognizes the legality of your dismissal after further negotiations. Otherwise, if your action for protection against dismissal is upheld by the court, the employer will be obliged to make substantial back pay following lengthy proceedings. A settlement is usually also of interest to the employer.

Attention: A sense of proportion is needed for a comparison

Settlement means that both sides come to an agreement. You refrain from taking any further legal action in dismissal protection proceedings. In return, your employer agrees to pay you a severance payment. In this way, a large proportion of dismissal protection proceedings end at the conciliation meeting. However, this requires experience and negotiating skills. This is because no law has specified the amount of severance pay. Half to a full month's gross salary per year of employment is usual. If your employer accepts a minimal offer, it may be advisable to go to the labor court for a further round of negotiations. Assessing the success of settlement negotiations and estimating the desired settlement amount is best left in the hands of an experienced specialist lawyer.

Step no. 2: The chamber appointment - be patient

The conciliation hearing has ended without a settlement. The labor court will now invite both parties to a chamber hearing. But: Don't count on speed. Nothing usually happens before two months have passed. Sometimes the parties wait up to 12 months. This is annoying for both sides - including the employer, who may have to pay back wages for a long period of time. In addition to the labor court judge, two honorary judges are present at the chamber hearing: one for the employee side and one for the employer side. The oral hearing at the chamber hearing also aims to reach a settlement between the opposing parties. If you do not agree to the settlement payment offered at the conciliation hearing, you or your lawyer now have the opportunity to make a higher claim. If you do not reach an agreement with your employer at the chamber hearing either, the labor court can schedule a second chamber hearing. However, this happens very rarely. As a rule, a court ruling is issued after an oral chamber hearing without agreement.

Possible step no. 3 for taking evidence: The second chamber hearing

If you and/or your employer are unable to substantiate disputed content or if the arguments appear to the court to require clarification, it will invite witnesses to take evidence at the second chamber hearing. The company is also obliged to provide detailed written reasons for your dismissal at this hearing. The court will examine all available evidence and may question witnesses on the termination matter. It will also point out the possibility of a settlement at the second chamber hearing. This can therefore still be reached at the "last minute" between you and your employer. If no settlement is reached, the court will declare the hearing closed. As a rule, it does not announce its judgment immediately, but sends it to the parties in writing by post.

What remains to be done after the action for unfair dismissal?

There are two scenarios here: Either you win the case or you lose it. If you lose, your dismissal will be legally binding. Your employment relationship is then terminated and you are not entitled to severance pay. If you do not wish to accept this outcome, you have the right to lodge an objection within one month. This applies to all those who have acted without a lawyer up to this point: You must see a lawyer by now at the latest. Because in the second instance, you are obliged to consult a lawyer. In addition, a specialist lawyer can assess the chances of an appeal like no other. Contact him as early as possible so that he can familiarize himself with your case.

Second scenario: You win your action for unfair dismissal. Your employer is obliged to continue to employ you. In addition, he will pay you any lost wages. On the other hand, a dismissal protection lawsuit usually damages the relationship of trust between you and your employer to such an extent that a continuation of the employment relationship is considered unreasonable. If the court determines this unreasonableness at your request, it will order the employer to pay a severance payment. It will also fix the date on which your employment relationship would have ended if the termination had been effective.

Conclusion of dismissal protection proceedings

Germany has a well-regulated dismissal protection law. Nevertheless, the procedure following your action for protection against dismissal should definitely be accompanied by a specialist lawyer. This is because this law is also full of exceptions and room for maneuver that only a legal expert knows how to use to your full advantage.