Does the termination affect future employment
Ordinary termination for employers and employees
In order for an ordinary dismissal to become legally binding, employers must take into account a whole range of requirements, for example from the Dismissal Protection Act. We help you to find your way in the jungle of justice.
What is ordinary termination?
Ordinary termination enables employment relationships to be terminated in compliance with specified deadlines and individual contractual agreements. When the ordinary termination takes effect, the existing employment relationship ends after the specified period of notice has expired. This applies to both permanent and fixed-term employment relationships. However, you must always adhere to a deadline for ordinary termination. It is regulated by law, but can also be set individually in the employment contract (in collective agreements). This is in contrast to the extraordinary termination, which takes place without notice.
Good to know: You can download an overview of the current collective agreements on this page.
If the employment relationship is subject to the Dismissal Protection Act, ordinary termination is only possible with a statement of reasons. A prerequisite for an ordinary termination is always that an employee does not belong to any employee group that is under dismissal protection or that can only be terminated under certain conditions.
Dismissal Protection Act regulates ordinary termination
The Dismissal Protection Act is an important instrument for protecting employees. Among other things, it regulates ordinary termination and the associated procedure. According to this law, an employer must justify the ordinary dismissal. Details on possible reasons that justify ordinary termination are stored in the Dismissal Protection Act.
However, the Dismissal Protection Act only applies if two conditions are met:
- The employee must have been employed by the company for at least six months without interruption.
- Small businesses are subject to a special regulation. You do not have to give reasons for the ordinary termination, provided that the number of employees does not exceed the stated limits. Since January 1, 2004, a small business has been considered a business with a maximum of ten employees. The old regulation of a maximum of five employees applies to all employment contracts concluded before this date.
Attention: Before 2004, the threshold was still five employees. If you hired your employees before 2004, the general protection against dismissal takes effect here, even though you have fewer than ten employees.
Despite this regulation, small businesses should take into account that the Federal Constitutional Court and the Federal Labor Court refer to a minimum of social consideration in their case law. Both institutions are calling for the interests of employees and employers to be weighed up in a socially appropriate manner before dismissal takes place.
Reasons for an ordinary termination
The Dismissal Protection Act emphasizes the value of a socially justified ordinary dismissal. This means that the existing situation leaves no other choice than to terminate the employment relationship. In this sense, the law distinguishes between the following reasons:
- Personal reasons
- Behavioral reasons
- Operational reasons
According to studies, most companies (a good 73%) quit for operational reasons. Only a quarter (24.4%) quit because of behavior and only 2.4% give personal reasons.
Source: Heisse Kursawe Eversheds
However, according to the authors of the study, the number of redundancies for operational reasons is so high because some companies only put forward this reason. Compulsory redundancies are simply more convenient for companies. In addition, the percentage is so high because several employees are dismissed with one termination.
If it is ensured that the employee will not be able to provide the required performance in the future due to personal skills or characteristics, personal reasons apply.
Examples of personal reasons:
- Above-average absenteeism due to illness with no prospect of change.
- Imprisonment with long-term negative effects on the company.
- Crimes that compete with professional tasks (e.g. theft and security service)
- Reasons of conscience and belief that prevent adequate performance (e.g. refusal to fill shelves with alcohol for religious reasons)
If an employee behaves towards superiors, colleagues or towards the company in such a way that continued employment is no longer reasonable, ordinary termination can be given - provided that the forecast for the future is negative.
Caution: behavior can change. In this case, the ordinary termination may only be given if milder measures are unsuccessful. This applies above all to a warning, which in this case must precede the termination.
Examples of behavioral reasons:
- Employee violates his duty to provide services.
- Disruption of company order through insults to the employer or alcohol abuse.
- Misconduct such as theft, false information and misuse of company property destroy the relationship of trust.
- Misconduct outside of working hours that has a negative impact on the company, e.g. B. Competitive Activities.
Operational reasons are primarily objective operational reasons that a company can only counteract by cutting jobs. At the same time, it is ensured that the employees who are to be terminated cannot continue to be employed in other positions in the company.
Examples of operational reasons:
- Loss of orders and sales over an unforeseeable long period.
- Internal measures such as outsourcing or the closing of locations reduce the need for employees.
The basic requirement for ordinary dismissal for operational reasons is always “Urgent” situation in the company, which cannot be equated with a current economic situation. However, the company must take all available technical, organizational or economic measures in advance that are suitable to prevent the downsizing.
Many companies offer severance pay, especially in the case of redundancy for operational reasons. Experts recommend this measure as protection against later labor court proceedings.
Before you cancel: Check the proportionality
Regardless of the reason for the termination, the employer must always check the proportionality of the measure and try to maintain the employment relationship with the help of milder means. These include:
- the warning
- the dislocation
- the implementation
- the change cancellation
If employers ignore this, they run the risk of dismissal protection lawsuits. In most cases, an ordinary termination is preceded by a warning, especially for behavior-related reasons.
In addition, before issuing an ordinary termination, employers must weigh up interests. Specifically, this means that you have to weigh up the reasons for and against the employee.
First aid for professional offboarding
Offboarding must be well organized even after a proper notice of termination - otherwise you will be wasting valuable potential. This checklist will help you.
In the case of a behavior-related termination, for example, it would look like this: First, clarify how serious your employee's crime was and how great the potential is for it to repeat itself. Compare the result with the period in which the employee wore a clean slate, i.e. did not break anything. Also include circumstances that could have affected the employee, such as: B. private problems such as alimony. The ordinary termination is only effective if you come to a negative result in this comparison and you cannot find a milder means of continuing to work with the employee.
Protection against dismissal for certain groups of employees
Under certain conditions there is protection against dismissal for employees or it is only possible under difficult conditions to terminate the employment relationship by giving notice.
- Works council members cannot be terminated by ordinary notice for the duration of their term of office and for one year from the end of their term of office.
- Severely disabled can only be terminated with the consent of the integration office. The representatives of the severely disabled must also be included in the process.
- Pregnant women and women on maternity leave are subject to dismissal protection during pregnancy and up to four months after delivery.
- Employees on parental leave are non-terminable eight weeks before their start until the end of parental leave.
- Nursing or family care time is particularly protected by the ban on dismissal. This applies to a care period of a maximum of six months.
Obligations of the employer in the context of ordinary termination
When it comes to ordinary termination, the employer must fulfill various obligations in order to meet the legal requirements or not to endanger the effectiveness of the termination.
- Information and consultation of the works council before the ordinary termination is mandatory.
- The approval of the integration office is required for severely disabled employees. The representative for severely disabled employees must be included.
- Ordinary termination must be made in writing.
- Compliance with the legally stipulated notice periods agreed in the collective agreement or personally.
- Obligation to provide a certificate by issuing a certificate of employment. Use the forms provided by the employment agency for this purpose. These must be created and transmitted correctly and in good time.
There is no obligation to state the reason in the letter of termination. Nevertheless, the employer must clearly prove the reason on request or in the event of an action for termination.
When does the ordinary termination take effect?
Although all legal and formal requirements have been met, ordinary termination can be ineffective if it is not correctly served.
Access is reliably fulfilled in the following situations:
- Throwing into the mailbox by the postman (with and without return receipt)
- Throwing into the house mailbox by the deliverer in spite of the known lengthy absence of the employee, e.g. B. Vacation.
- Personal delivery of the letter of termination in the presence of at least one witness.
You should also deliver a termination personally out of appreciation and respect. In this article, you will learn how a dismissal interview should work.
Watch out, trap:
Many a “shrewd” employee is of the opinion that he could prevent the dismissal by not accepting it or make it ineffective. So he ignores the notification in the mailbox and does not pick up the registered letter from the post office.
And it is precisely at this point that you as an employer must exercise the greatest caution. Because as soon as you receive the notification that the letter has not been picked up, you must repeat the ordinary termination immediately. If you fail to do so, the termination will in fact not be effective.
Ordinary termination requires caution and accuracy
If you take into account all important points such as the written and timely ordinary termination and if you can clearly state the reasons for the termination of the employment relationship, the risk of ineffectiveness or action for termination is very low. However, always remember, if available, to involve the works council in the process at an early stage and, above all, to issue a warning in the first step in the event of conduct-related dismissals.
We draw your attention to the fact that our website is for non-binding information purposes only and does not represent legal advice in the true sense of the word. The content of this offer cannot and should not replace individual and binding legal advice that addresses your specific situation. In this respect, all information provided is without guarantee of correctness and completeness.
The contents of our website - especially the legal articles - are researched with the greatest care. Nevertheless, the provider cannot accept any liability for the correctness, completeness and topicality of the information provided. In particular, the information is of a general nature and does not constitute legal advice in individual cases. To resolve specific legal cases, please consult a lawyer.
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