Planning and legally sound implementation of dismissals
A dismissal is only effective if both formal and substantive requirements are met. Procedural errors often cannot be remedied afterwards. We support you from preparation through to service of the notice and in any subsequent proceedings.
The key points at a glance
Dismissal Protection Act
In businesses that normally employ more than ten people, ordinary dismissal after the employment has lasted more than six months requires social justification. Part-time employees are not counted per head but pro rata: as 0.5 with regular weekly working hours of up to 20 and as 0.75 with up to 30 hours (§ 23 Abs. 1 KSchG). The threshold of ten therefore refers to the number of employees converted into full-time equivalents. The dismissal may be based on reasons relating to the person, to conduct or to urgent operational requirements. In the case of redundancy dismissals, a social selection must also be carried out under § 1 Abs. 3 KSchG.
Form and deadlines
Under § 623 BGB, a dismissal must be in writing. Electronic form is not sufficient. Notice periods are determined by statute, collective agreement or the employment contract. Extraordinary dismissal must be declared within two weeks of becoming aware of the relevant facts.
Consultation of the works council
Where there is a works council, it must be consulted before every dismissal under § 102 BetrVG. A dismissal given without proper consultation is invalid. The works council must be fully informed about the person concerned and the reasons for dismissal.
Special protection against dismissal
Additional requirements apply to certain groups, for example severely disabled persons, pregnant women, employees on parental leave and works council members. In these cases, prior official approval or special procedures are regularly required.
How we proceed
We clarify the reasons for dismissal, examine the evidence and identify any special protection against dismissal. We also assess alternatives such as a formal warning, a transfer or a termination agreement.
We prepare the consultation of the works council and any necessary applications to the authorities, and draft the letter of dismissal. We determine a verifiable method of service.
If the employee brings an action for protection against unfair dismissal, we represent you before the labour court. Where appropriate, we conduct parallel discussions on an amicable solution.
Frequently asked questions
Within what deadline can a dismissal be challenged in court?
Under § 4 KSchG, an action for protection against unfair dismissal must be brought within three weeks of receipt of the written notice of dismissal. If the deadline is missed, the dismissal is generally deemed effective from the outset.
Is a formal warning always required before a conduct-related dismissal?
As a rule, yes, since dismissal should be the last resort. In the case of particularly serious breaches of duty, a formal warning may exceptionally be unnecessary.
Your contacts
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Gewürzmühlstraße 5 · 80538 Munich