Termination of an employment contract is a unilateral declaration by which one of the contracting parties wishes to terminate an existing contractual relationship. As it is a unilateral declaration, it does not require the consent of the other contracting party to be legally effective. A termination takes effect solely through its declaration to the terminated contracting party. This distinguishes a notice of termination from a proposal to terminate or amend the existing employment contract. A termination or amendment agreement is not possible unilaterally.
If you as an employer issue a dismissal, it may be ineffective because not all the provisions of the protection against dismissal have been observed. An invalid dismissal can have financially detrimental consequences if the dismissed employee successfully files an action for unfair dismissal and you have to continue paying their salary beyond the date of the invalid dismissal.
Employers should therefore check whether protection against dismissal exists before giving notice. If so, the dismissal does not necessarily have to be legally watertight, but at least "presentable". In many cases, the offer of a termination agreement is a good alternative to dismissal.
If you as an employee give notice of termination, your employer may react angrily. The reference may not be as positive as you expect, or a target agreement bonus may be reduced or set to "zero" because your personal targets have allegedly not been achieved.
Before giving notice, employees should therefore reach an agreement on possible disputes. For example, an interim reference can be issued or the degree to which personal objectives have been achieved can be confirmed.
An (effective) termination terminates the contractual relationship as soon as it is declared to the other party. Therefore, it cannot be unilaterally "withdrawn" after receipt by the terminated contractual partner. Once an (effective) notice of termination has been given, its legal effect, i.e. the termination of the contract, cannot be subsequently removed unilaterally by withdrawing the notice of termination.
Nevertheless, notices of termination are often "withdrawn", and such declarations of withdrawal are not meaningless. The "withdrawal" of a notice of termination is legally to be seen as an offer to continue the terminated employment relationship by mutual agreement, without interruption and under the previous contractual conditions. However, the terminated contractual partner (naturally) does not have to accept this offer.
Sometimes employers only want to remove individual components of the employment contract, especially those that have become too expensive for them. These can be special payments, e.g. vacation pay, a Christmas bonus or similar bonuses. In such cases, the employer only wants to remove certain salary components, but the employment relationship as such should continue to exist.
EA dismissal with notice of change is the (unilateral) termination of the entire employment relationship, combined with a simultaneous (contractual) offer to continue the employment relationship by mutual agreement (by contractual agreement) under changed conditions. In practice, notices of termination are almost exclusively issued by the employer. However, employees can also terminate the employment contract and offer the employer to continue the contract under changed conditions, e.g. at a higher salary.
If the terminated contractual partner does not accept the offer of change, there is no change to the terms of employment. The termination then remains in effect. Further information on this can be found under "Termination - notice of termination with change of contract".
A declaration of termination whose effect is made subject to a condition, i.e. a future uncertain event, is invalid.
For example, a dismissal that the employer issues as a precautionary measure "in case" the employee is guilty of certain breaches of contract in the future would not be permitted.
The reason for the ineffectiveness of a conditional termination is that terminations, as declarations of legal justification, must be as clear and unambiguous as possible so that the terminated contractual partner knows where he stands.
Bei einer bedingten Kündigung wüsste man aber nie genau, ob die Bedingung eingetreten ist oder nicht, sodass man nie genau wüsste, ob das Arbeitsverhältnis nun gekündigt ist oder nicht.
In the case of extraordinary termination, the terminating party does not normally observe the notice periods. According to Section 626 (1) of the German Civil Code (BGB), this requires an "important reason". This is a particularly serious reason for termination that makes it unreasonable for the terminating party to wait for the notice period to expire.
Extraordinary termination of the employment relationship can be pronounced by both contracting parties. Not only the employer but also the employee can give extraordinary notice.
In many, but not all cases, extraordinary terminations are also terminations without notice. A termination for cause, but not without notice, exists if the terminating party combines a termination for cause with an expiry period, e.g. until the end of the month.
In the event of ordinary termination, the terminating contractual partner shall observe the notice periods stipulated by law, contract or collective agreement.
Anders als bei einer außerordentlichen Kündigung braucht man für eine ordentliche Kündigung keinen wichtigen Grund. Vielmehr kann man im Prinzip ohne besonderen (wichtigen oder weniger wichtigen) Grund kündigen, also einfach deshalb, weil man das Vertragsverhältnis eben beenden möchte.
At this point, there is an important difference between employers and employees: In principle, employees can always give ordinary notice, i.e. they have freedom of termination. The only exception is if ordinary termination is excluded for a certain period of time by the employment contract. Employers, on the other hand, only have freedom of dismissal if the employee does not enjoy protection against dismissal.
As an employee, you can generally always give ordinary notice of termination, i.e. you are free to give ordinary notice of termination. You therefore do not need to worry about reasons for termination, but only have to observe the notice period applicable to you. Once the notice period has expired, the employment relationship is terminated in any case.
An exception to the freedom of termination applies to fixed-term employment contracts. According to Section 15 (3) of the Part-Time and Fixed-Term Employment Act (TzBfG), a fixed-term employment relationship can only be terminated with notice if this option has been agreed in an individual contract or in a collective agreement applicable to the employment relationship.
As mentioned above, employers often do not have the freedom to dismiss. This means that employers must not only comply with the notice period even in the event of ordinary dismissal, but also observe the protection against dismissal, which applies unilaterally in favor of the employee.
Dabei unterscheidet man zwischen dem allgemeinen Kündigungsschutz und Sonderkündigungsschutz.
Employees enjoy general protection against dismissal if the Dismissal Protection Act (KSchG) applies to their employment relationship. Information on when the KSchG applies can be found under "Protection against dismissal".
If there is general protection against dismissal, an ordinary dismissal declared by the employer is only effective if it can be based on one of the reasons that are conclusively regulated in the KSchG: The dismissal must be justified by reasons in the person of the employee (e.g. long periods of sick leave) and/or by reasons in the employee's conduct and/or by operational reasons.
Therefore, in the case of ordinary dismissals by the employer, who must comply with the KSchG when giving notice, a distinction is made between
In practice, the most important case of dismissal for personal reasons is dismissal due to illness.
Further information on general protection against dismissal can be found under the keywords "Protection against dismissal", "Dismissal - personal dismissal", "Dismissal - dismissal due to illness", "Dismissal - dismissal due to conduct" and "Dismissal - dismissal due to operational reasons".
Certain groups of employees have special protection against dismissal (special protection against dismissal). This protection exists independently of the general protection against dismissal and is based on legal provisions outside of the KSchG.
Employees with special protection against dismissal are not only protected in the same way as their "normal" colleagues, but even more strongly. This includes in particular
Works council members, pregnant women and young mothers in the first four months after giving birth, employees on parental leave and severely disabled persons.
Further information on this can be found in our handbook on employment law under the headings "Non-terminability", "Works council - protection against dismissal", "Maternity protection", "Parental leave, parental allowance" and "Severe disability, severely disabled person".
Notice periods postpone the end of the employment relationship after notice of termination has been given. Although the employment relationship is then already terminated, it continues for a while until the notice period expires.
Employees must therefore continue to go to work until the end of the notice period, and employers must continue to pay wages and salaries. In this way, notice periods secure both parties' claims to the contractual benefits.
Anyone wishing to terminate an employment relationship must, without exception, give notice of termination in writing due to the mandatory written form requirement pursuant to Section 623 BGB. The written form requirement applies equally to employers and employees.
If a notice of termination does not comply with the legally required written form, it is null and void (Section 125 sentence 1 BGB). This means that it is invalid from the outset and has no legal effect.
In order to comply with the written form required by law, the notice of termination must be recorded in a document, i.e. on paper, and signed by the issuer in his or her own hand. It is also possible to sign with a notarized signature (Section 126 (1) BGB).
Termination by email, fax, text message or WhatsApp message is therefore invalid. This is because in such cases there is either no written notice of termination (email, text message) or the original is not available to the terminating party (fax). This renders the termination invalid.
The termination does not generally have to be justified in order to be effective.
In the case of extraordinary terminations, however, the terminating party must "immediately notify the other party in writing of the reason for termination upon request" in accordance with Section 626 (2) sentence 3 BGB. However, this obligation to notify the reasons does not change the fact that a termination without justification is also effective if there is - objectively - an important reason for it.
An exception applies to the dismissal of an employee who is protected from dismissal in a special way by the MuSchG, i.e. pregnant employees and young mothers in the first four months after giving birth. Here, employers not only need the prior approval of the highest state labor protection authority for a dismissal, but they must also inform the dismissed employee of the reason for the dismissal in the letter of dismissal (§ 17 para. 2 sentence 2 MuSchG).
The question of who should sign the letter of termination is important in the case of terminations by the employer. This is because the effectiveness of a dismissal can fail if it is declared by someone who does not have sufficient power of representation.
If a written notice of termination is handed over personally, e.g. during a staff meeting at the company, it is declared effective immediately, i.e. upon handover. This also applies if the recipient of the notice of termination does not read the letter of termination or even throws it away.
Notices of termination that are posted in a letterbox are not always received on the day of posting, but often on a later day, i.e. on the day on which the recipient normally checks their letterbox for the post.
In no case does the date of termination depend on the date noted in writing on the notice of termination. This is referred to as the date "under which" the notice of termination was given. This date is legally irrelevant.
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