Legal action against dismissal

Legal action against dismissal / Kündigungsschutzklage

November 03, 2023

In most cases, employees do not agree with a dismissal. After the initial shock, it is therefore necessary to examine whether and how to take action against the dismissal. The most urgent question here will be whether the dismissal was legally binding. If the dismissal is ineffective, the employment relationship continues unchanged. If there are doubts about the effectiveness of a dismissal by the employer, the dismissed employee has the option of going to the labour courts. It is therefore possible to file an action for unfair dismissal.

Do I have to hurry if I want to file an action against unfair dismissal? Is there a deadline to observe?

You have enough time to think carefully about your next steps and seek advice before you decide to file an action for unfair dismissal. However, the time is limited, as the action for protection against dismissal must be received by the competent labour court no later than three weeks after the employee has received the termination notice. If this deadline is not met, no action for protection against dismissal can be brought and the dismissal is deemed to be effective. Only in very rare cases is it still possible to bring an action for protection against dismissal after this three-week period has expired.

When should you file an action for protection against dismissal?

As an employee, you do not want the employment relationship to be terminated unilaterally. If you ask people who have been dismissed what they want, the answer in most cases is that everything should remain as it is. And this is exactly what can be achieved with an action for unfair dismissal. Alternatively, the aim is often to achieve a severance payment for the dismissed person as part of an action for protection against dismissal, so that the dismissal is at least not economically disadvantageous. After all, the mutual trust has been so severely damaged by the dismissal that many employees can no longer imagine continuing to work at their old company. It is also worth mentioning that not filing an action for protection against dismissal can even lead to negative consequences for the employee at the unemployment agency and to a suspension of unemployment benefits.

Are there other ways to take action against dismissal?

Many people simply don't want a legal dispute. The idea of going to court against their employer and filing a dismissal protection claim makes quite a few employees hesitate. However, there are no means of defence inferior to an action for protection against dismissal. A simple objection to the dismissal has no legal effect. In some cases, out-of-court negotiations can lead to success. However, if there are reasonable doubts about the validity of the dismissal, filing an action for protection against dismissal is unavoidable.

When is a dismissal invalid?

A dismissal can be invalid for a number of reasons. These range from errors in the form of the notice of termination to a lack of grounds for termination, failure to comply with special grounds for protection against dismissal or bypassing the works council. Doubts about the validity of the dismissal may arise, for example, if

• an extraordinary dismissal has been pronounced and justified on the grounds that the employee has made a serious mistake, but the accusation cannot be substantiated,
• the employee has received a dismissal for operational reasons and the employer has not properly carried out the required social selection in the dismissal,
• the employer based the dismissal on alleged misconduct and did not give the employee a proper warning, although this would have been necessary.

Can I file the dismissal protection claim myself or do I need a lawyer?

There is no obligation to have a lawyer present at the labour courts of first instance. This means that you can also file the action for protection against dismissal on your own. However, as the success of the case depends very much on the correct presentation of the employment relationship, all operational circumstances and the dismissal scenario, it may be advantageous to consult a lawyer.

How does such a process work if I file an action for protection against dismissal?

When an action for protection against dismissal is received by the labour court, a file number is first assigned and the competent judge checks the admissibility of the application and sets a date for a conciliation hearing. The aim of this conciliation hearing is for the parties to the legal dispute, i.e. the employee and the employer, to reach an amicable settlement so that the legal dispute can be brought to an end. In principle, the parties do not have to be present in person at this meeting; you can be represented by your lawyer. A potentially unpleasant meeting between the parties is therefore also avoided. At this hearing, the judge will discuss the legal prospects of success of the action for unfair dismissal with the parties. The greater the concerns about the legality and thus the effectiveness of the dismissal, the better the prospects for the employee of a favourable settlement with an appropriate severance payment as compensation for the loss of the job. A settlement reached in court is recorded by the court and ends the court proceedings. The settlement is binding for the parties and can also be enforced by law in the event of non-compliance. In most settlements, the parties agree to terminate the employment relationship on a certain date and to pay a severance payment. Other contents of a settlement may include, for example, the issue of a qualified reference or release from work obligations. If the parties are unable to reach an agreement, the dismissal protection proceedings continue. The parties will then be given the opportunity by the court to deal intensively with the arguments put forward by the respective opposing party and to present their case. The second date for an oral hearing will be a so-called chamber hearing, i.e. two honorary judges will be present in addition to the full-time judge. If the employee is successful with the action for protection against dismissal and wins the case, the dismissal is deemed invalid and the employment relationship continues unchanged. The employee is then entitled to all outstanding salary or wage payments. If one of the parties does not agree with the outcome of the proceedings, it is possible to go to the second instance and submit the case to the court of appeal for review.

Requirements for an action for unfair dismissal

First of all, the statutory protection against dismissal must apply. This is the case after the first six months of an employment relationship, the so-called waiting period. The contractually agreed probationary period is unaffected by this. In addition, the company must have more than ten employees. Otherwise, it is a small business in which the Dismissal Protection Act does not apply. In small businesses, employees can only successfully defend themselves against a dismissal in rare cases, especially if the circumstances are particularly blatant and the dismissal was immoral.

Costs of dismissal protection proceedings - is it worth it?

The special thing about dismissal protection proceedings is that each party only bears its own costs in the first instance. This concerns the lawyer's fees. These are calculated on the basis of the German Lawyers' Fees Act and the value in dispute. The amount in dispute is based on the employee's quarterly earnings. If the employee earns EUR 3,000 gross, the amount in dispute is EUR 9,000. If the legal dispute is settled, the legal fees amount to EUR 2,135.46 including VAT (currently 16%). These costs are amortised by a settlement to be negotiated or continued employment. The amount of the severance payment is generally based on the length of employment, i.e. the so-called length of service. Half a month's salary is paid for each year of service. With 10 years of service, this amounts to EUR 15,000. There are no court costs if the parties reach a settlement.

Have you received a notice of termination? We will be happy to advise you on whether the dismissal was effective and whether you should file an action for unfair dismissal. Please arrange an initial consultation.