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You should know these deadlines about Termination of employment

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An employee termination checklist serves as a blueprint for your company’s leaving procedures and comprises the information you’ll need to provide dismissed personnel.

If you want to change your job, you need to know the notice period. The new employer will want to know when you can start at the earliest. Without a termination agreement, you can only change after your notice period has expired – i.e. the period between receipt of the notice and the actual termination of the employment relationship.

And even if the employer wants to quit, he must know how long the employee will continue to work for him after the dismissal has been issued.

What notice periods apply to the employment relationship?

The notice period that employers and employees must observe is usually determined in the employment contract. If there is a reference to the legal regulations, these apply. If a collective agreement applies to the employment relationship, the collective agreement deadlines are decisive if they are more favorable for the employee.

If nothing is regulated in the employment contract, the statutory notice period (§ 622 BGB) applies. In order to determine the actual deadline, however, many regulations must be observed.


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What does the law say about the notice periods in labor law?

If your employment contract does not contain any regulation or if it refers to the law, the statutory notice period applies. It is four weeks to the 15th or the end of a calendar month (Section 622 (1) BGB). Four weeks is not a month, but exactly 28 days. This period always applies if the employee resigns.

The probationary period is an exception: during this period, both the employer and the employee can give notice of termination on any day with a notice period of two weeks (Section 622 (3) BGB). Another exception is extraordinary termination without notice. Then there is no notice period.

If you were already employed by your employer before your 25th birthday, the employer must take these times into account. This was decided by the European Court of Justice at the beginning of 2010 (ECJ, judgment of January 19, 2010, C-555/07). Younger employees must not be disadvantaged.

The German regulation in Section 622 (2) sentence 2 BGB, according to which periods before the age of 25 are not to be taken into account when determining the length of service, is therefore not applicable (BAG, judgment of September 1, 2010, 5 AZR 700/09 ).

The staggering of the deadlines according to the length of service is generally better for older employees than younger ones. However, this is not age discrimination and is therefore permissible (BAG, judgment of September 18, 2014, Az. 6 AZR 636/13).

Short notice period during the probationary period only with clear formulation

Sometimes employers have not made clear regulations in the employment contract. Although you have set a probationary period, you did not clearly state in the regulation of the notice periods that the longer notice periods should only apply after the probationary period has expired.

Then the longer period of notice also applies during the probationary period (BAG, judgment of March 23, 2017, Az. 6 AZR 705/15). This formulation is clear: “After the probationary period has expired, the employment relationship can be terminated by both parties with a notice period of xx to xx.”

When calculating the notice periods, special legal rules must be observed:

Severely handicapped persons – For severely handicapped persons, the notice period is at least four weeks (§ 169 SGB IX). Since a minimum notice period of four weeks also applies to other employees, the protection regulation for severely disabled people is only relevant if collective agreements stipulate a notice period shorter than four weeks. The minimum notice period for severely disabled people of four weeks does not apply during the probationary period.

Insolvency proceedings – If the insolvency administrator terminates an employee or the employee terminates the contract himself, a period of notice of three months to the end of the month applies regardless of the employee’s length of service (Section 113 sentence 2 InsO). This applies even if the employee is on parental leave (BAG, judgment of February 27, 2014, Az. 6 AZR 301/12).

As compensation for the premature termination of the employment relationship due to insolvency, the employee is entitled to a no-fault claim for damages (Section 113 sentence 3 InsO). If legal or contractual provisions provide for a shorter period, the shorter period applies.

What is the notice period in the employment contract?

Your employment contract is likely to have a longer notice period than the statutory one. However, it must never be longer for the employee than for the employer. Such a contractual clause would be ineffective.

A dynamic extension of the deadline is often agreed, which depends on the length of service with the company. An agreement is permissible and also common, according to which the extended notice periods of the law should apply to both sides, i.e. also to the notice of termination by the employee.

Fewer termination dates can also be agreed in the employment contract. Instead of termination at the end of the month, for example, only termination at the end of the quarter is permitted.

A shortening of the statutory notice periods to the detriment of the employee is not permitted. Exceptions apply

  • For temporary workers who are only employed for up to three months (Section 622, Paragraph 5, Clause 1, No. 1 BGB) and
  • In small businesses that have no more than 20 employees (Section 622 (5) sentence 1 no. 2 BGB).

But here, too, there is a minimum notice period of four weeks. The extended notice periods according to the law cannot be shortened even in small businesses. The only advantage for small businesses is that no termination dates are set for the 15th or the end of the month. He can therefore cancel on any day with four weeks’ notice.

Example: If there is a corresponding agreement in the employment contract, notice could be given on Thursday, October 19, to Thursday, November 16, instead of November 30. That saves the employer half a month’s salary.

What notice periods are there in collective agreements?

Collective notice periods only apply to you if a collective agreement is applicable to your employment relationship. That can be if

  • Employers and employees are each bound by collective bargaining agreements or
  • The collective agreement has been declared generally binding or
  • The collective agreement is constantly applied by the employer in operational practice or
  • The application of the collective agreement is agreed in the employment contract.

Generally binding collective agreements

A collective agreement can be binding if it has been declared generally binding by the Federal Ministry of Economics in accordance with Section 5 of the Collective Bargaining Act. You can find an up-to-date list of generally binding collective agreements on the website of the Federal Ministry of Labor and Social Affairs.

It is also permissible to only agree the notice periods of the respective collective agreement between employers and employees who are not bound by collective bargaining agreements.

Statutory notice periods can be extended or shortened through a collective agreement. The generally binding framework collective agreement for commercial employees in building cleaning from June 28, 2012 only provides for a two-week notice period in the first five years of employment.

Not only the deadlines, but also the termination dates as well as the length of service and their effects on deadlines can be set in a way that deviates from the statutory regulation.

If collective bargaining and employment contract regulations on the notice period contradict each other, the regulation that is more favorable for the employee applies in the case of mutual collective bargaining (Section 4 (3) TVG). Since the employee usually has a greater interest in the continuation of the employment relationship, longer notice periods are usually more favorable. If it is undecided which is cheaper, the collective agreement applies.

As an employee, how do you calculate your notice period?

Your notice period depends on whether you want to resign yourself or whether your employer has given you notice.

Termination by employer

For the calculation of the notice period, only the date on which you received the notice of termination is used, not the date of the notice of termination. The calculation of the notice period is based on the general rules in the German Civil Code (§§ 187 ff. BGB). The day on which you received the notice of termination is not included in the calculation of the period. The day on which the notice of termination is received corresponds to the day of the week on which the period ends.

Example: If the employment relationship is to end on Wednesday, November 15th, the notice of termination must be received by Wednesday, October 18th at the latest. Otherwise the termination will not take effect until November 30th according to the legal regulation.

If your notice period is calculated according to months instead of weeks, the respective calendar days correspond. If the month in which the employment relationship is to end is shorter than the month in which the notice of termination is given, the last day of the month applies to the expiry of the deadline.

Even if the termination date is a Saturday, Sunday or public holiday, the employment relationship will be terminated on this date and not on the following working day. The regulation in Section 193 BGB is not applicable (BAG, judgment of March 5, 1970, Az. 2 AZR 112/69).

Example: You have been employed by your employer for more than two years and on October 1st you receive a written notice of termination effective October 31st. The termination will not take effect until November 30th. The reason is that the day on which the declaration is issued is not counted.

So the run of the deadline doesn’t start until October 2nd. A full month’s period ends on November 1st according to Paragraph 188 (2) of the German Civil Code. Since the employer can also only terminate at the end of the calendar month, the termination will only take effect after the notice period has expired on November 30th.

Termination by employees

As an employee, you should also calculate a specific termination date and write it in the notice of termination. You should supplement your calculation with the sentence that the termination should alternatively apply at the next possible date. You can use our sample letter of termination for your termination.

What applies if the notice period is incorrectly calculated?

The notice of termination must indicate the point in time at which the employment relationship is to be terminated. For this purpose, it is sufficient to specify the termination date or the notice period. A reference to the relevant legal regulation is usually sufficient (BAG, judgment of June 20, 2013, Az. 6 AZR 805/11).

An incorrectly calculated notice period is in many cases interpreted as if it were intended for the next possible correct date (BAG, judgment of May 15, 2013, Az. 5 AZR 130/12). The effects of an incorrect or missing termination date depend on the respective termination and the circumstances of the individual case:

Example 1: “We hereby terminate the employment relationship as of November 30, 2015.” If the termination date has been incorrectly calculated, this very clear and unambiguous termination cannot be interpreted or reinterpreted without further evidence as if the termination were intended at a different time. In this case, the employee must bring an action for protection against dismissal, otherwise the dismissal with an incorrect termination date is deemed to be effective. Something else can result from the circumstances.

Example 2: “We hereby terminate the employment relationship in due time on November 30, 2015.” The Federal Labor Court had to decide in May 2013 on such a type of termination. The deadline was miscalculated.

The interpretation of the notice of termination showed that the date was put into perspective by adding “timely”. Through the wording, the terminated person could see that the employer also attached importance to complying with the relevant notice period (BAG, judgment of May 15, 2013, Az. 5 AZR 130/12).

Therefore, the legally permissible date takes the place of the incorrect termination date. The employment relationship was terminated three months later.

Example 3: “We hereby terminate the employment relationship as of November 30, 2015, alternatively at the next possible date.” Such a termination is effective despite the incorrect time limit calculation; it terminates the employment relationship at the next possible date.

Example 4: “We hereby terminate the employment relationship at the next possible date.” This termination does not indicate when the employment relationship should end. If the letter does not refer to the notice period or the statutory regulations according to which the relevant date is calculated or the notice period results, the notice of termination may be ineffective (BAG, judgment of June 20, 2013, Az. 6 AZR 805 / 11).

Dismissal protection suit for incorrectly calculated deadlines

If the employer has incorrectly calculated the deadline in the notice of termination, the declaration must first be interpreted. If the interpretation shows that the incorrectly calculated termination date should be replaced by the next possible date, the termination will take effect at this later point in time.

If the notice of termination cannot be interpreted because a clear termination date is specified, you should file a suit with the labor court within three weeks of receipt of the written termination. If you do not file a lawsuit, the notice given with too short a notice period in accordance with Paragraph 7 KSchG is deemed to be legally effective and terminates the employment relationship at the wrong date specified in the notice of termination.

The most important questions summarized for you

What notice periods apply to the employment relationship?

The notice period that employers and employees must observe is usually determined in the employment contract.

If nothing is regulated in the employment contract, the statutory notice period (§ 622 BGB) applies. In order to determine the actual deadline, however, many regulations must be observed.

What does the law say about the notice periods in labor law?

If your employment contract does not contain any regulation or if it refers to the law, the statutory notice period applies. It is four weeks to the 15th or the end of a calendar month (Section 622 (1) BGB). Four weeks is not a month, but exactly 28 days. This period always applies if the employee resigns.

What is the notice period in the employment contract?

Your employment contract is likely to have a longer notice period than the statutory one. However, it must never be longer for the employee than for the employer. Such a contractual clause would be ineffective. A dynamic extension of the deadline is often agreed, which depends on the length of service with the company.

As an employee, how do you calculate your notice period?

Your notice period depends on whether you want to resign yourself or whether your employer has given you notice.

Termination by employer

For the calculation of the notice period, only the date on which you received the notice of termination is used, not the date of the notice of termination. The calculation of the notice period is based on the general rules in the German Civil Code (§§ 187 ff. BGB).

Termination by employees

As an employee, you should also calculate a specific termination date and write it in the notice of termination. You should supplement your calculation with the sentence that the termination should alternatively apply at the next possible date. You can use our sample letter of termination for your termination.

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Michelle Halterman
USA, China, South Africa and now Munich - Michelle has come a long way in the world. She is an outdoor person and loves to be in nature with friends and on her mountain bike. Or she meets up with friends for pasta, vino, cappaccino & Co.
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