Job security

The German Employment Protection Act ( Consumer Protection Act) is a law that the principle existing in civil law termination of freedom of contracts with a longer maturity ( " continuing obligations " ) in favor of the employee upon termination of employment limited to socially unwarranted dismissals (see also protection against dismissal ).

• 2.1 people Kündigung
• 2.2 Behavioural termination
• 2.3 Operating Kündigung

Conditions for the application

Number of Employees

The operation must usually employ more than ten workers, so-called small business clause ( reverse of § 23 Section 1 Sentence 3 Consumer Protection Act).

For the calculation of the number of employees Part-time employees will be distributed acc. § 23 Section 1 Sentence 4 Consumer Protection Act considered as follows:

• Up to and including 20 hours / week: 0.50
• Up to 30 Hours / Week: 0.75
• 30 hours / week: 1.0.

In this method of counting is therefore sufficient, the value of 10.25 to be considered employees for the applicability of the law. Apprentices, managing or about the farmer will not be considered. In the calculation of the operating variable temporary workers are also employed in the operation to take into account if their use is based on a "usually " existing manpower requirements.

Before 31 December 2003 was sufficient for the applicability of employment protection law, a number of more than five ( ie at least 5.25 ) workers. Who after this old regulation on 31 December 2003 had employment protection, this protection against dismissal reserves continue if with him still more than five " Altarbeitnehmer " in operation - are employed ( reverse of § 23 Section 1 Sentence 2 - nor at the time the notice of termination Consumer Protection Act). Vaginal however, such " Altarbeitnehmer " from the employment relationship, and thus falls this threshold to five or less, lose all their other previous redundancy protection. Then the small business limit of more than 10 employees to the new legal (since 1 January 2004) is the sole deciding factor.

Length of employment

The employment relationship must exist longer than six months ( § 1 para 1 Consumer Protection Act).

This so-called waiting period under the Employment Protection Act is not to be confused with the probationary period in accordance with § 622 BGB. The agreement of a trial period only affects the duration of the applicable notice period, then the four weeks of the 15th or the end of a calendar month to two weeks probation notice period is shortened.

Events of Default

§ 1 paragraph 2 Consumer Protection Act provides for a dismissal on three grounds in:

• People conditionally,
• Behavioral reasons,
• For operational reasons.

People Kündigung

When people terminating their services are the reasons for the termination of employment in the person of the employee. A people -related termination is possible if the employee work (more) can not perform. Most frequently, the people -related termination is the termination due to a prolonged illness or frequent short disease, which leads to the inability to work, and will lead in the future. In contrast to the behavioral termination the employee is not at fault in terminating their people generally. Not socially unconstitutional is the people -related termination under the following conditions: a It must be established that the employee will no longer be in the future be able to meet its employment duties (negative prognosis ). b. This essential interests of the employer are affected. c. The balancing of interests shows that the legitimate interests of the employer are worthy of protection than the interests of the employee.

Behavior Kündigung

In the behavioral notice the reason for the dismissal is misconduct of the employee. Is condition of their lawfulness in the sense of employment protection law that the employee a contractual obligation significantly - has violated the reasonable possibility of a different, future disturbances reliable exclusionary employment does not exist and the solution of the employment relationship in balancing the interests of both parties to the contract worthy of approval - usually culpably and appears reasonable. Often, but not necessarily, the behavioral notice is given as extraordinary, termination without notice.

The employer who pronounce a behavioral termination must have warned usually the employee previously for a similar breach of duty. The warning is not necessary if the misconduct is so serious that the employee had to be clear from the outset that this behavior is not tolerated under any circumstances.

To a behavioral dismissals occur, for example, if the employee has committed a theft or expenses fraud, is often too late, has not communicated or demonstrated his incapacity, he has arbitrarily started his vacation, " made ​​blue " has or his job performance is poor. Often, alcohol and drug use are referred to as behavioral reasons for termination. If the employee is looking sick and he therefore can not control his behavior, only a personal conditional termination comes into consideration.

A substantive law rightly pronounced behavioral termination leads to § 159 Paragraph 1 No. 1 of the SGB III to an off-period for unemployment benefit if the employee has intentionally or by gross negligence unemployment.

Operational termination

From an operations related termination occurs when objective factors lead to a business decision, in turn, has the omission of the workplace of the employee concerned or a plurality of jobs result. Here are fundamentally distinct reasons that the companies act from the outside ( for example, loss of revenue, abolition of orders) and reasons that are brought about by the company itself (organizational decisions, restructuring, plant closure ). The business decision itself is reviewed by the labor courts only "obvious arbitrariness or lack of objectivity ."

For operational reasons, the social selection according to § 1 is to note 3 Consumer Protection Act. Several workers of employees shall be terminated, who has the best social data, that is, which is the least affected by the termination. The criteria of social selection, the length of service, age, existing maintenance obligations and may present severe disability may have been used for the redrafting of dismissal protection law from 1 January 2004 only.

Time limit for action

The Employment Protection Act statuiert in § 4, the Consumer Protection Act for unfair dismissal claim a limitation period of three weeks. However, this limitation period is not a requirement for admissibility, but a substantive preclusion represents the notice shall be deemed to be legally effective if it is not attacked within three weeks of receipt of an appeal to the Labour Court ( effectiveness fiction of § 7 of the Consumer Protection Act ). The action must therefore be unfounded, but not be dismissed as inadmissible if the three-week period has been exceeded. This estoppel applies since 1 January 2004 for all cancellations and any ineffectiveness reasons, so it must be complied with in every case, even if the Employment Protection Act should not be applicable to the employment relationship (for example, termination of a pregnant women in small business, compare notice periods in labor ).

However, exceptions are terminations that do not satisfy the written form or are not made ​​on time, even if the employee does not wish to rely on the substantive invalidity of termination: If the termination therefore not pronounced against the procedural requirements of § 623 in writing, so can their ineffectiveness be invoked in proceedings before the Labour Court, even after expiry of the three-week period. The same applies in the event that the applicable notice period was not met, but the termination letter - can be seen that the Notifiable wanted to explain a proper notice in compliance with the objective to be followed notice period - if necessary by way of interpretation. Contrast, can be pronounced with a short deadline for cancellation is not as such a design with the deadline, legitimate, non-compliance with the Consumer Protection Act notice must be filed in court within the three-week period of § 4 sentence 1.

The action was brought because of such reasons that, exceptionally, are not covered by § 7 of the Consumer Protection Act can, may gem because of lis pendens. § 46 Section 2 Sentence 1 ArbGG in conjunction with § 261 Paragraph 3 Clause. 1 CCP the admissibility of the action omitted if already unfair dismissal claim or lawsuit was filed to determine the existence of an employment relationship.

Änderungskündigung

A change notice is when the previous employment relationship extraordinarily (usually then without notice ) or neat ( in compliance with the minimum notice period ) will be terminated and also the continuation of the employment relationship: is offered ( in the ordinary revision termination after expiry of the notice ) to changed conditions ( compare § 2 Consumer Protection Act). Again, the employment protection law requires for the effectiveness of the change notice the existence of grounds for termination within the meaning of § 1 paragraph 2 of the Consumer Protection Act and a rather substantial complaint compliance with the three-week period for bringing proceedings.

The employee may either reject the modification offer and complain against the amendment notice. He then loses the case, the employment relationship is terminated; he wins, he has a claim to continued employment of the old contract terms.

However, it can also change the contract terms " subject to their social justification" and accept the change ( a so-called unfair dismissal claim, sometimes called change protection suit ) checked court within the three-week period for bringing proceedings. This reservation is within the notice period but no later than within three weeks after receipt of the notice to the employer (not to the court! ) To explain. Is explained within the (at most ) three-week period of the reservation to the employer and also collected within this period complaint to the labor court, the court examines the social justification of each change. If it is missing ( even for a single contract amendment and whether the nebensächlichste ) the total change in the termination is socially unjustified. The employee then has a claim to continued employment unchanged conditions. If the notice of amendment, however socially justified, that the employee loses the case, he must indeed to the changed conditions continue to work, but keeps his job. The explanation of the reservation so reduces the risk of job loss to zero for the employee.