Germany – Fifteen common misconceptions in German employment law: Part Four
This series of articles addresses and corrects some of the most common misconceptions in German employment law. Part Four deals with misconceptions relating to when an employer can terminate an employee and formal requirements for a termination.
As described in Part One to Three of this series (links provided at the end of this article), there are many misconceptions relating to German labour law that instead of being critically examined, tend to be simply passed on by ‘word-of-mouth’. This series aims to uncover and clarify frequently occurring legal errors.
A number of these misconceptions relate to issues in connection with an intended termination. For example, there is a persistent rumour that dismissals at Christmas, during illness or on birthdays are not permitted. Notices of termination are also frequently issued by email or even via WhatsApp. In this fourth part of the series we will address and clarify these popular legal misconceptions.
No termination allowed at Christmas or during illness
Not true! Notice of termination issued by an employer will be null and void if it violates the principles of good faith. Notice of termination that is given at an inopportune time can also violate the principle of good faith if it particularly burdens the employee because of the time chosen. However, there must be additional circumstances over and above a stressful time of termination, for example that the employer, either deliberately or through lack of thought based on disregard for the personal interests of the employee, specifically chose to give notice of termination at a time that would particularly affect the employee. Therefore, according to the case law of the Federal Labour Court, a termination notice is not invalid solely because it is received on Christmas Eve (ruling of 14 November 1984 – 7 AZR 174/83). Similarly, according to a ruling by the Regional Labour Court in Cologne, a notice of dismissal is not contrary to good faith simply because it is issued to an employee who is ill (ruling of 13 February 2006 – 14 (3) Sa 1363/05). Even a birthday does not stand in the way of a notice of termination. However, the Regional Labour Court in Bremen considered a notice of termination to be contrary to good faith and thus ineffective in a case in which an employee was given notice in hospital immediately before an operation after a serious accident at work (ruling of 29 October 1985 – 4 Sa 151/85).
Employers can terminate an employment agreement by email or WhatsApp
Not true! For a notice of termination to terminate an employment relationship effectively, it must be issued in writing, under § 623 of the German Civil Code (BGB). The requirement for notice in writing is fulfilled by a termination notice that is signed in writing by an authorised person. The signature does not have to be legible, but it is must adequately identify the signatory. According to case law, a signature in the form of mere initials is not sufficient. The requirement for written notice creates legal certainty and protects against haste. According to the case law of the Federal Labour Court, verbal notice of termination does not fulfil this formal requirement and nor does notice of termination by email, text message or WhatsApp (ruling of 17 August 1972 – 2 AZR 415/71). If the employer terminates a contract verbally, by email, text message or WhatsApp, the termination is invalid.
In the context of an employment relationship, it is not necessary to give reasons for any written notice of termination that is issued within the prescribed period of notice. In the event of an extraordinary termination, however, the reason for termination must be notified immediately in writing on request, § 626 Section 2 Sentence 3 German Civil Code (BGB). However, if the employer does not fulfil its obligation to justify the extraordinary termination, this does not invalidate the termination (Federal Labour Court, ruling of 17 August 1972 – 2 AZR 415/71).
There are some special features that must be taken into account for apprenticeship contracts. If the notice of termination is given for an important reason without notice, or if the apprentice gives notice because he or she wishes to give up vocational training or to be trained for another occupation, the reasons for the termination must be stated in the notice of termination (§ 22 Section 2 of the Federal Employment Promotion Act). This applies to both the employer and the apprentice. If the reasons for termination are not stated or are not sufficiently explained, this renders the termination null and void.
In conclusion, the fourth part of this series on popular misconceptions regarding employment law it has shown that dismissals which are particularly burdensome for the employee specifically because of the time chosen for the dismissal may be ineffective. However, this does not generally exclude termination notices issued while the employee is ill or on Christmas Eve. However, notice of termination will not be valid if sent solely by WhatsApp or email.