How do I fire my lawyer

Get rid of employees: when & how to fire employees

This post tells you, among other things, when to use a Get rid of employees what legal options are available here and what you can do in the event of an action for protection against dismissal.

 

Get rid of employees because of Corona?

If your company has to make savings due to the Corona crisis, you can only terminate your employees under certain conditions. You must z. B. can prove that there is a direct connection between Corona and the operational savings. If necessary, you can also terminate an employee if he or she does not appear at work for fear of corona infection or exposes colleagues to a risk of infection despite knowing that they are infected.

 

1. Get rid of employees - requirements

If an employee does not perform well, violates work regulations or harms the company through criminal behavior, the employer can get rid of this employee. A prerequisite for a termination, however, is a prior warning. The employer can then issue a

  • without notice,
  • behavioral,
  • personal termination or
  • Issue suspected termination.

The employment relationship can also be terminated by means of a termination agreement.

 

This must be taken into account when dismissing certain groups of employees:

When dismissing certain groups of employees, employers also have to meet high legal hurdles. So these may only be extraordinarily - i. H. be terminated without notice for an important reason. This applies to the following employees:

  • Works council members,
  • Employees who cannot be terminated according to the employment or collective bargaining agreement,
  • Officer,
  • Trainees after the end of the probationary period and
  • Employees on parental or care leave.

If the employer wants to dismiss a severely disabled person despite protection against dismissal, this is only possible if he has received the approval of the integration office.

If there is also a works council in the company, no notice of termination may be given without its consent. If the employer dismisses an employee without taking these requirements into account, the termination is generally ineffective.

In the next chapter, we will explain in detail what legally compliant options you have when you want to get rid of an employee.

 

2. How can I get rid of employees?

The employer cannot simply dismiss an employee whose performance remains below expectations, is often ill or refuses to work. Even if the employee makes himself a criminal offense through harassment, embezzlement or damage to his reputation, some formalities must be observed for a termination without notice.

In the following, we explain how employers can get rid of an employee and which legal requirements must be complied with for the dismissal to be effective.

 

2.1 Termination Agreement & Compensation

If the employer wants to get rid of an employee, the termination agreement is a means of coming to an amicable agreement with him to leave the company. The payment of a severance payment can be agreed therein. This creates an additional incentive for the employee to sign the contract and terminate the employment relationship quickly. Various requirements must be met so that the termination agreement and the severance payment arrangement can be designed in a legally compliant manner.

 

Termination Agreement

The termination agreement is the alternative to termination and regulates the amicable termination of the employment relationship if employers want to get rid of an employee. On the one hand, a dismissal procedure is avoided - the employer is not bound by notice periods and is not obliged to justify the dismissal of the employee. On the other hand, the contract can be designed freely according to the ideas of both sides, so that the employer has appropriate clauses, e.g. B. can ensure the non-competition clause, the employee's waiver of legal action and the maintenance of trade secrets. By setting a severance payment, the employer can also offer an incentive to end the employment relationship quickly.

The termination agreement must and must be submitted to the employee in writing in accordance with Section 623 BGB

  • Employers and employees,
  • the time at which the employment relationship ends, and
  • Name the place and date of the conclusion of the contract and
  • have the signatures of employers and employees.

In addition, the termination agreement is drawn up individually using various clauses. Immoral, illegal regulations - e.g. B. backdating a contract, a disproportionately high severance payment or an unjustifiably long non-competition clause of more than two years - have the consequence that the employee can contest the termination agreement and the employment relationship then continues.

LINK TIP: You can find more detailed information on the termination agreement and its drafting, which legally compliant clauses are available and which additional requirements must be observed in our article on writing a termination agreement.

 

Secure termination agreement with a lawyer:

Various legal regulations are bound to a termination agreement, the non-compliance of which results in the ineffectiveness of the contract. In addition, the legally secure formulation of the individual contract clauses can be decisive in order to protect your company interests and to get rid of the employee concerned. A labor law attorney can review the termination agreement and advise you on the best possible drafting of your contractual clauses. Of course, the lawyer can take over the preparation of the termination agreement for you in order to guarantee the greatest possible legal security.

► An advocado partner lawyer will explain your options for action in a free initial assessment. Get an initial assessment now.

 

severance pay

The payment of a severance payment is intended to compensate for the future loss of regular income that the employee faces due to the sudden termination of his employment contract. The specific severance payment is regulated in the termination agreement via a severance payment clause. It is customary to pay half to a full gross monthly salary per year of employment.

If the employer and employee cannot mutually agree on the termination of the employment relationship, a warning is another option if the employer wants to get rid of the employee - and has legitimate reasons to do so.

 

2.2 Warning

If an employee violates his obligations set out in the employment contract, the employer can issue a warning. The warning notifies the employee of the breach of duty, asks him to refrain from doing so in the future, and threatens to be dismissed if this does not happen. The warning is the prerequisite for a later termination - regardless of which type of termination is selected.

 

Form and content of the warning

There are no legal formal requirements for a warning. To ensure that the employee really receives the warning, it can best be done in writing and sent by post - ideally by registered mail.

 

Contents and requirements of the warning letter:

  • The employee's offenses must be described and documented in detail in the warning letter.
  • The indication of the date, time and place of the misconduct makes this description valid.
  • Other employees who have witnessed the breach of duty can be named in the letter.
  • Reference to the contractual obligation that was violated.
  • Explicit request from the employee to refrain from misconduct.
  • Threat of conduct-related dismissal if the misconduct persists.

 

What else should you watch out for?

A warning is not necessary after a serious offense by the employee. Theft, industrial espionage and damage to reputation justify immediate termination without notice.

Section 83 (2) of the Works Constitution Act (BetrVG) and Section 242 of the German Civil Code entitle the employee to object to the warning with a written reply. So that the warning cannot be rejected as ineffective, it can absolutely meet the requirements of the content.

LINK TIP: Our detailed article on the subject of writing a warning offers you a sample template for the warning that takes into account all content requirements, as well as information on how any problems can be avoided in the event of a subsequent termination.

 

► You want to get rid of an employee with legal support? An advocado partner lawyer will explain your options for action in a free initial assessment. Get an initial assessment now.

 

2.3 Termination

If the warning is unsuccessful and the employee does not cease the breach of duty, the termination is the last resort for the employer to get rid of the employee.

 

What to consider before canceling:

In order to get rid of an employee and to be able to terminate it in a legally secure manner, the regulations of the Employment Protection Act (KSchG) must be observed. These take effect as soon as an employee has worked for the company for more than six months and more than ten employees are employed there. A termination is only permissible if it is socially justified - i.e. if there is a reason for the termination mentioned in the KSchG.

For pregnant women and employees on maternity protection up to four months after the birth, the Maternity Protection Act stipulates an absolute ban on dismissal. The special protection against dismissal applies in full during this period.

LINK TIP: For more information on special protection against dismissal for pregnant women, when this protection does not apply and in which cases dismissal is possible despite maternity protection, read our article on protection against dismissal during pregnancy.

If the employer terminates an employee on parental leave, this is generally not permitted. However, the ineffectiveness of the termination must be asserted within three weeks of notification by filing a dismissal protection suit at the labor court. If the employee does not do this, termination is permissible.

LINK TIP: You can find more detailed information on the legal regulations and the requirements for dismissing an employee on parental leave in our article on dismissal during parental leave.

If the employee who is to be terminated is not protected against dismissal, termination is always possible without prior warning. This is the case if he has not been employed by the company for six months - in other words, he may still be on a probationary period - or if he is employed in a small business with fewer than ten permanent employees.

How to terminate with legal certainty, which formalities and deadlines must be observed and what must be observed with regard to a severance payment after termination, we explain to you in Chapter 2.4 - Caution: terminate correctly.

We will now explain to you which types of termination are possible for which misconduct in order to get rid of an employee in a legally secure manner.

 

Behavioral termination

Does the employer want to get rid of the employee because he has violated a contractual obligation through his controllable behavior - for example

  • illicitly consumed alcohol or other drugs before or during working hours,
  • refuses to work,
  • Offended colleagues or customers,
  • Commits theft,
  • became conspicuous through bullying or
  • stays away from work without excuse -,

then a behavior-related termination is possible.

If the employee violates his duty in this way and does not change his behavior even after a warning, the requirements for a behavior-related termination are met.

 

Termination for personal reasons

A personal termination is appropriate if the employee can no longer perform his work to the required extent, taking into account his personal requirements, skills and / or living conditions. This would be e.g. B. the case if

  • he is constantly doing too little - z. B. because he
  • long-term or more frequently short-term illness -,
  • Further training measures were unsuccessful or he rejects them,
  • he no longer has a residence permit or work permit,
  • has been sentenced to imprisonment or
  • is alcoholic or drug addict.

LINK TIP: You can find more detailed information on termination due to illness, when this is possible and what rights the employee has in this context in our article on termination during sick leave.

If an employee does too little, the employer has to counteract this through support and further training. He also has to check whether it is possible to transfer the employee to another position in the company whose skills correspond to his / her skills. If further training does not show a satisfactory increase in performance and a transfer is not possible, the employer may give notice of termination.

LINK TIP: You can find further information on the requirements, formalities and deadlines as well as when the termination can be ineffective in our detailed article on personal termination.

 

Termination on suspicion

The suspected termination is a special form of personal termination, which is usually pronounced as an extraordinary termination without notice. A termination on suspicion is possible if the employer has reasonable grounds to suspect a breach of duty on the part of the employee.

For example, if theft at the workplace is up for discussion - and an employee is suspected of being well-founded - the employer is entitled to terminate the contract. A warning is not required, but the employee must first have the opportunity to defend himself against the accusation in a conversation with the employer. The employer must also issue the suspected dismissal within two weeks of becoming aware of the facts.

 

Right to reinstatement in the absence of a hearing:

The suspected dismissal is ineffective without hearing the employee concerned. The employer also has the duty to adequately clarify the matter. Because if the suspected employee is later found to be innocent, he has a right to be reinstated.

 

Termination without notice

If there is an important reason, the employer can immediately terminate the employment relationship according to Section 626 of the German Civil Code (BGB) by giving notice without notice. Nevertheless, even with this type of termination, he cannot simply get rid of such an employee. It also requires a prior warning from the employee in order to point out his wrongdoing and to give him the chance to change it. Only in the case of really serious misconduct, which permanently destroys the trust necessary for the continued existence of the employment relationship, is a termination without notice possible, even without a warning.

The following offenses are grounds for termination without notice:

  • Theft,
  • sexual harassment,
  • Industrial espionage,
  • Insult,
  • Reputation damage or
  • Violation of the non-competition clause.

The termination without notice must be given within two weeks of the incident. If a trainee is to be dismissed without notice, a reason must be given. The reason for the termination only needs to be given to all other employees upon request. If there is a works council, it must be heard prior to termination without notice.

 

What else do you need to consider in the event of a termination?

The employer is not always automatically obliged to pay a severance payment to the employee who has been dismissed. The employee is only entitled to the severance payment in the event of a termination for operational reasons.

If there is a works council in the company, the employee has the right under Section 3 of the KSchG to object to his ordinary dismissal within one week if he considers the dismissal to be unjustified.

In the following chapter, we will explain the requirements and deadlines that you have to observe so that the termination of your employee cannot be rejected as ineffective as part of a dismissal protection process.

 

2.4 Warning: cancel correctly

Does the employer want z. B. to get rid of an employee due to underperformance, unexcused absence or violation of the non-compete clause, it is crucial that the notice of termination meets all formal and content-related requirements. In the following we have summarized for you what you have to consider.

 

Employer's Obligations

  • According to Section 623 of the German Civil Code (BGB), the employee must be notified in writing of any termination. The employer may not stipulate any other regulation in the employment contract.
  • In the event of ordinary termination of all employees who have been employed for more than six months, the employer must observe the statutory notice periods.
  • If there is a works council in the company, the employer must inform and consult with it prior to any dismissal.In the event of an intended ordinary termination, the works council has the right to object to the termination within a one-week period.

 

Termination deadlines and contents

Section 622 BGB regulates the statutory notice periods for employers. For permanent employees, for example, a period of one month applies if the employment relationship lasts for up to two years. The longer the employee has been with the company, the longer the notice period at the end of the employment relationship. A notice period of two weeks applies to employees in the probationary period of up to six months.

LINK TIPS: We explain more detailed information on dismissing an employee during the probationary period, which deadlines must be observed and when they can still be protected against dismissal in our article on the statutory notice period during the probationary period. Further information on the various notice periods and special regulations can also be found in our article on the various statutory notice periods.

 

Contents of an ordinary termination:

  • Naming the employer and employee,
  • Indication of the start of the employment relationship and
  • Timely end date,
  • Indication of the reason for the termination,
  • handwritten signature of the employer,
  • if a representative signs the notice of termination, his / her relationship with the employer must be clear from the notice of termination,
  • Notice of receipt of termination.

 

What should you watch out for after a successful termination?

Section 312 of the Social Code (SGB) obliges the employer to issue a certificate of employment at the request of the employee or the Federal Employment Agency after the end of an employment relationship subject to social insurance. In it, he has to provide information about the type of activity of the employee, duration and reason for the termination of the employment relationship as well as the remuneration and, if necessary, other cash benefits. The employer should use the Federal Agency's form for this certificate.

If an employer does not issue the required employment certificate, or issues it too late or incorrectly, he is committing an administrative offense that is punishable by a fine. In addition, the dismissed employee can claim compensation from the employer if he or she loses unemployment benefits due to the lack of a certificate of employment.

Employers are also obliged to provide permanent employees with a job reference after the termination. In order to ensure that the letter is correct in terms of form and content, employers can also have a lawyer draw up the job reference.

 

Observe the deadlines, formalities and content requirements of the termination

If the employee files a dismissal protection action after the dismissal, because he feels the dismissal is unjustified or suspects errors in the letter, and the court has given the right to do so, the employment relationship will continue to exist. A lawyer can ensure in advance that the reason for the termination is not open to attack and can advise you on the appropriate type of termination. He can also ensure the legal security of the letter of termination. So you can be sure that the termination is not ineffective and get rid of the employee quickly.

An advocado partner lawyer will explain your options for action in a free initial assessment. Get an initial assessment now.

 

3. Employee files dismissal protection suit - what can I do?

You want to get rid of an employee and have given him the notice. However, if the employee considers the dismissal to be socially unjustified or has doubts about its legality, he can bring an action for protection against dismissal. We will now explain how you can react to this.

 

Avoid continued employment even before the court ruling

However, the employer can counteract the possible continued employment of the employee during the procedure by working towards a settlement. Then he can negotiate an appropriate severance payment with the employee and thus reach an amicable settlement. In addition, by paying a severance payment, the employer avoids the risk of having to continue to employ the employee he wanted to get rid of in the event of an invalid termination after the termination of the dismissal protection process.

 

New employment of the employee

If the employee has accepted a new job during the dismissal protection process, this initially has no influence on the procedure, since the dismissal is questioned regardless of subsequent employment. Accordingly, the entitlement to default payment remains in place. The new position, however, has an impact on the amount of any additional wages that may have to be paid. The remuneration of the new position will be deducted from the existing default wages for acceptance - if the employee receives more or the same wages from their new employer, there is no entitlement to the default wages for acceptance.

 

In the event of a violation of the non-competition clause: enforce injunctive relief and claims for damages

During the legal proceedings, the employee may not work in direct competition with the employer - otherwise he violates the statutory prohibition of competition for employees set out in Section 60 (1) of the German Commercial Code and transferred to Section 242 of the BGB.

LINK TIP: You can find all information on the employee's obligations resulting from the statutory non-competition clause, the consequences of agreeing a post-contractual non-competition clause for both parties and the resulting claims of the employee in our article on the non-competition clause for employees.

If the employee violates an applicable non-competition clause, the employer can in any case claim damages from the employee. Furthermore, he can in any case assert an injunction by means of an injunction if the employee is illegally working for the competition. In addition, the employer can take action against the competing company in which the former employee works illegally - regardless of whether he violates the statutory or post-contractual non-competition clause. He can also assert his claims for injunctive relief and compensation against his competitor.

The basis for claims is, for example, § 823 BGB for interfering with commercial operations or § 826 BGB as well as §§ 3, 4 and 8 of the law against unfair competition.

 

4. Cost

If the terminated employee files a dismissal protection suit within three weeks, it may be advisable for the employer to seek legal advice and be represented in the process - the legal services then incur costs. If the employer files an action for an injunction because of the violation of the non-compete clause and would like to claim damages in court, this will also incur costs. We will break down the costs for you in detail below, depending on the procedure.

In general, the following applies: In proceedings before the labor court, employers and employees have to pay their respective legal fees themselves - regardless of how the court finally decides. The entire court costs are borne by the person who loses the trial.

LINK TIP: You can find detailed information on what fees the lawyer can charge you, how these costs are calculated and what options there are for assuming the costs in our article Legal Fees Labor Law.

 

Cost of the dismissal protection process

The legal fees depend on the amount in dispute of the legal action - this corresponds to the sum of three gross monthly salaries of the employee. For example, if he earns € 2,500 a month, the amount in dispute is € 7,500. Based on the amount in dispute, the Lawyers' Remuneration Act (RVG) stipulates the amount of legal fees.

The following table shows the legal fees that may arise in the dismissal protection process depending on the amount in dispute:

 

Amount in dispute

Legal fees (net)

  6.000 €

   885,00 €

  7.500 €

1.140,00 €

  9.000 €

1.267,50 €

10.500 €

1.510,00 €

 

Should the employer lose the dismissal protection process due to an invalid dismissal, he would also have to bear the court costs. These are stipulated in the Court Fees Act (GKG) depending on the amount in dispute in the following amount:

 

Disputed amount up to

Court costs

  6.000 €

330 €

  7.500 €

406 €

  9.000 €

444 €

10.500 €

534 €

 

Injunction costs

In the event that the employer can assert an injunction claim and instructs a lawyer to enforce the claim in injunctive relief proceedings, legal and court costs will be incurred. The procedural costs depend on the amount in dispute that is to be negotiated in the lawsuit. This value increases the more the employer's rights have been violated.

Whoever loses the lawsuit pays the legal and court costs of both parties. If the employer can successfully enforce his injunction, he has the right to reclaim his legal fees from the employee or competitor as part of his claim for damages.

 

5th tip: legal support before & after the dismissal of an employee

If the employer wants to get rid of an employee for a legitimate reason, he can do this with a termination agreement and severance payment or a dismissal. A lawyer can check the contract as well as the warning and termination letter in advance, rule out any formal errors or gaps in content and thus guarantee a legally secure termination of the employee whom you want to get rid of. Is the z. If, for example, dismissed employees still bring an action for protection against dismissal, a lawyer can ensure that your goals and interests are consistently pursued with the help of an appropriate legal strategy and the lawsuit is dismissed.

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