Ordinary termination: tips for employees

When the employer and the employee part ways, this often happens via ordinary notice of termination. In this case, the employment relationship is terminated by one of the two parties – and the period of notice is observed in the process. Both the employer and the employee can thus issue an ordinary notice of termination. However, different conditions apply to both sides.

Ordinary termination: What is it anyway?

Ordinary dismissal can be given by both the employer and the employee. The ordinary termination is – like the other forms of termination – a unilateral declaration of intent. This means that the other party does not have to agree to the termination. It is sufficient that the notice is received by the other party.

In the case of ordinary termination, both parties must adhere to the notice period agreed in the employment contract or collective agreement. If there is no corresponding reference in either contract to the applicable period for termination, the statutory periods of notice apply. These can be found in § 622 of the German Civil Code (BGB).

For employers, the following statutory notice periods apply

Employees, on the other hand, have an easier time terminating the employment relationship quickly. The following statutory periods of notice apply to them:

Reasons for giving notice

There are 3 permissible reasons for an ordinary termination on the part of the employer:

1. Person-related termination: The most common form of termination for personal reasons is termination due to illness. The employer thus gives notice because his employee can no longer perform the work and the reasons for this lie in his person. However, dismissals for personal reasons are also conceivable if the employee loses his or her professional license.
2. Termination for operational reasons: In the case of termination for operational reasons, the employee is not at fault. In this case, the employer gives notice because he is experiencing economic difficulties and is therefore no longer able to employ some of his employees. Terminations for operational reasons occur, for example, when parts of the business are relocated abroad or activities are transferred to external companies.
3. Behavioral termination: In a termination for conduct, the fault for the termination lies solely with the employee. In most cases, a termination for behavioral reasons is preceded by at least one warning. In this warning, the employee is made aware of his misconduct. In addition, his employer requires him to change his behavior immediately. If this does not happen, a termination for conduct usually follows. Caution: However, a warning is not always necessary. If the employee's breach of duty is enormous, the employer may also terminate the employment without prior warning. Theft or another criminal act, for example, are sufficient grounds.

Good to know: Employers must be able to cite one of these reasons before they are allowed to give notice to their employee. However, this reason does not necessarily have to be stated in the notice of termination. Employees who receive a notice of termination without cause should therefore request their employer to inform them of the reason in writing.

Employees, on the other hand, do not need a reason if they wish to terminate with due notice. In their case it is sufficient if they comply with the notice periods. In addition, of course, they must comply with the formalities that apply when giving notice of termination.

Requirements for an ordinary termination

Employment law in Germany is often structured favorably for employees. Unlike in other countries, it is not that easy to terminate an employee without further ado.

Therefore, even in the case of ordinary termination, strict conditions apply to which the employer must adhere. If you receive an ordinary notice of termination, it is worthwhile in many cases to consult a lawyer and to have the legality of the termination examined. Labor law in particular is quite extensive and, what is more, is scattered across several legal texts. For laypersons, it is almost impossible to keep track of all the regulations and to derive recommendations from them.

However, you may still be able to check the following requirements for an ordinary termination in advance without a lawyer. Caution: The list is not complete. It is best to seek the advice of a specialist lawyer in this regard.

1. Written form: the notice of termination must be in writing. Terminations via SMS, WhatsApp or e-mail are therefore not permitted; instead, the terminating party (this applies to both the employee and the employer) must draft a letter (keyword: business letter) in which he or she issues the termination notice.
2. Signature: The document must be signed by hand.
3. Notice period: In the case of ordinary notice of termination, the notice period must be observed. Either a contractually agreed period of notice or the statutory period of notice found in the BGB applies.
4. Substitution: The person giving notice must also be authorized to do so.
5. Approval of the works council: If there is a works council in the company, it must be consulted before the termination and must approve the termination.
6. Dismissal is possible: Some employees cannot be dismissed without notice. This applies, for example, to employees with a severe disability or pregnant employees.
7. Proportionality: The termination must be proportionate and the last possible resort. There is therefore no permissible way of employing the employee elsewhere in the company.
8. Access: the notice of termination must be received for it to be effective. It is sufficient for it to come within the "sphere of influence" of the recipient. Delivery to the mailbox is sufficient for this purpose. The employee does not have to personally receive or even read the notice of termination before it can become valid. In other words, if you receive mail from your employer while you are on vacation, in the worst case scenario you will be out of a job when you return home.

Special protection against dismissal: These employees have special protection against dismissal

As already mentioned, there are some employees who cannot be dismissed so easily. Even if the requirements for an ordinary termination are actually fulfilled and a corresponding reason exists.

This group of employees includes:

• Employees with a severe disability and employees who are on an equal footing with them
• Female employees covered by the Maternity Protection Act
• Employees who are on parental leave or have applied for parental leave
• Employees who are on caregiver leave or have requested caregiver leave
• Works councils
• Non-terminable employees

Ordinary termination and unemployment benefits: What are the implications?

First of all, time is of the essence in the case of an ordinary termination: If you want to file an action for protection against dismissal, you only have 3 weeks to do so. If this is your wish, you should quickly find a competent attorney for labor law.

If you are a member of a union or have legal insurance, you can get financial assistance there to help you with your plan.

Of course, you can only file an action for protection against dismissal if your employer has dismissed you. If you have given notice yourself, there is no possibility to do so.

And there is another disadvantage to cancelling your own insurance: In all likelihood, you are threatened with a block on unemployment benefits I (ALG I). In fact, the employment agency will argue that you are responsible for terminating yourself, so you probably won't pay any money for 12 weeks.

You are probably also threatened by this if your boss has terminated your employment for reasons of conduct. Because even then you are responsible for losing your job – after all, no one forced you to behave this way.

But even if your boss has terminated your employment for operational reasons, you will not automatically receive ALG I. To do this, you must register as unemployed with the employment agency no later than 3 months before the end of the notice period or when you receive the notice of dismissal.

In principle, it is therefore a good idea to seek advice from a lawyer. In some circumstances, they may be able to give you individual advice on how best to deal with your situation.