Termination without notice in Germany: What employees should check immediately

In a termination without notice, the employer wants to end the employment relationship immediately. Unlike an ordinary dismissal, no notice period is observed.

Legally, this is often referred to as an extraordinary dismissal or summary dismissal. In practice, employers often write something like:

"We terminate the employment relationship without notice, alternatively with ordinary notice at the next possible date."

This means: The employer wants to end the employment relationship immediately. If the court finds that the termination without notice is invalid, the ordinary dismissal should apply instead.

In such a case, both levels must be reviewed:

• Is the termination without notice effective?

• If not: is the alternative ordinary dismissal effective?

• Was the correct notice period observed?

• Does the German Dismissal Protection Act apply?

• Is there special dismissal protection?

No.

For a termination without notice, the employer needs an important reason. The reason must be so serious that the employer cannot reasonably be expected to continue the employment relationship until the end of the ordinary notice period.

This is a high threshold.

Not every conflict in the employment relationship is enough. Not every breach of duty justifies immediate termination. The specific circumstances of the individual case are decisive.

In particular, the following points must be reviewed:

• What exactly is the employee accused of?

• Can the allegation be proven?

• How serious is the breach of duty?

• Was there a prior warning?

• Would a milder measure have been sufficient?

• How long did the employment relationship exist?

• Was the employment relationship previously free of problems?

• Is it really unreasonable for the employer to continue the employment relationship until the end of the notice period?

For a termination without notice, the employer must also observe a special deadline.

The employer must generally declare the termination within two weeks after the person entitled to terminate has become aware of the relevant facts.

In simple terms: Once the employer knows the allegation, the employer cannot wait indefinitely and keep the termination without notice in reserve for later.

This does not mean that every delay automatically makes the termination invalid. Sometimes the employer must first investigate the facts. In internal investigations, hearings or complex situations, the question of when the deadline begins can be difficult.

Nevertheless, the two-week deadline is an important review point.

Terminations without notice are often based on serious breaches of duty.

Typical allegations include, for example:

• working time fraud,

• theft or property offences against the employer,

• expense fraud,

• persistent refusal to work,

• serious insults,

• threats or physical assaults,

• sexual harassment,

• threatening to call in sick,

• serious breaches of confidentiality or non-compete duties,

• manipulation of working time records or documentation.

Important: These examples do not mean that termination without notice is always effective in such cases.

Even in serious cases, it must be reviewed whether the facts are actually established and whether termination is proportionate.

In cases of controllable misconduct, a prior warning is often required.

A warning has two functions:

1. It criticises specific conduct.

2. It warns the employee that repetition may endanger the employment relationship.

Especially in less serious or repeatable breaches of duty, dismissal without a prior warning is often problematic.

Example: Repeated lateness

If an employee is repeatedly late, the employer will often have to issue a warning first. Only if the employee violates the duties again afterwards may a conduct-related dismissal be considered.

Written warning in Germany: what employees should know

A warning is not always required.

It may be unnecessary if it would be pointless from the outset or if the breach of duty is so serious that the employee could not reasonably expect the employer to tolerate the conduct.

This may be relevant especially in cases of serious breaches of trust.

Example: Serious breach of trust

In cases of intentional manipulation, significant property offences or particularly serious insults, a warning may be unnecessary in the individual case.

But here too, there is no automatic answer. The seriousness of the allegation, the circumstances of the case and the balancing of interests are decisive.

Even if there has been a breach of duty, the review is not over.

It must also be assessed whether termination without notice is appropriate in the specific case.

Factors that may count for or against the employee include:

• seriousness of the breach of duty,

• fault,

• damage or risk,

• risk of repetition,

• length of service,

• previous course of the employment relationship,

• employee's position in the company,

• possible responsibility of the employer,

• prior warnings,

• milder measures.

This balancing of interests is one reason why terminations without notice cannot be assessed schematically.

Sometimes the employer dismisses not because a breach of duty is considered fully proven, but because there is a serious suspicion.

Such a dismissal based on suspicion can also be effective only under strict conditions. The suspicion must be serious and based on concrete facts. The employer must also generally attempt to clarify the facts.

In many cases, this includes hearing the employee before issuing the dismissal.

Whether these requirements were met should be reviewed carefully.

If there is a works council in the establishment, the employer must hear it before issuing the dismissal.

This also applies to termination without notice.

The employer must inform the works council which dismissal is intended and on which reasons it is based. In a termination without notice, it is not automatically sufficient to refer generally to misconduct. The works council must be informed in a way that enables it to comment meaningfully on the intended dismissal.

If the hearing is missing or defective, the dismissal may be invalid.

Important: If the employer wants to terminate without notice and alternatively with ordinary notice, the works council hearing must also sufficiently cover these types of dismissal.

Additional protection rules apply to certain groups of employees.

Special dismissal protection may exist, for example, in cases of:

• pregnancy,

• parental leave,

• severe disability,

• works council membership,

• apprentices after the probationary period.

In such cases, a dismissal may have additional requirements. In some situations, the employer needs official approval before issuing the dismissal.

This point should be reviewed in every termination without notice case.

A termination without notice may also have consequences for unemployment benefits.

If the Employment Agency assumes that the employee caused the unemployment by conduct in breach of the employment contract, a blocking period for unemployment benefits may be imposed.

This means that no unemployment benefits are paid for a certain period. The overall duration of the entitlement may also be reduced.

For this reason, termination without notice should not be viewed only from an employment-law perspective, but also from a social-security perspective.

Important: Not every allegation made by the employer is automatically correct. Challenging the termination without notice may also be relevant for the assessment by the Employment Agency.

Settlement agreement blocking period for unemployment benefits in Germany

The three-week deadline generally also applies to termination without notice.

Anyone who has received a written dismissal must file a dismissal protection claim within three weeks after receiving the dismissal if the dismissal is to be reviewed by the labour court.

If this deadline is missed, the dismissal is generally deemed effective. This can happen even if there were serious doubts about the dismissal.

That is why quick action is particularly important.

Dismissal protection in Germany: when does it apply and what is reviewed?

After a termination without notice, employees should proceed in an organised way.

The most important steps are:

1. Keep the dismissal letter.

2. Note the date of receipt.

3. Keep the envelope if relevant.

4. Do not sign any declarations too quickly.

5. Write down the allegations.

6. Secure evidence, messages, duty rosters or witnesses.

7. Check whether there were prior warnings.

8. Check whether there is a works council.

9. Register as unemployed.

10. Check the three-week deadline.

11. Obtain a legal assessment.

Especially in cases of termination without notice, employees should not wait too long. The economic and social-security consequences can be significant.

Many employees understandably react emotionally. Nevertheless, some mistakes should be avoided.

It can be problematic to:

• send angry messages to the employer,

• sign a settlement or waiver clause too quickly,

• admit the allegation without review,

• delay unemployment registration,

• miss the three-week deadline,

• fail to secure evidence.

It is better to remain calm, collect documents and review the legal options.

Termination without notice is a serious step, but it is not automatically effective.

The employer needs an important reason. In addition, the two-week deadline, a possible warning, the balancing of interests, the works council hearing and special dismissal protection must be reviewed.

The consequences for unemployment benefits should also not be underestimated.

The key point is: Anyone who has received a termination without notice should quickly check whether a dismissal protection claim makes sense. The deadline is generally three weeks after receiving the written dismissal.