Given notice: the first two weeks decide

After notice of dismissal, the first reaction is usually not a legal one. Yet the first few days determine whether legal steps are still possible.

The short deadline

In businesses required to have a works council, a dismissal can be challenged on the basis of a prohibited motive, because it was a reaction to the legitimate representation of interests or, after six months of service, as socially unjustified (§§ 105, 107 ArbVG). As a rule the action must reach the Labour and Social Court within two weeks of receipt of the notice; where the works council objected to the dismissal, the period is calculated under § 105 para 4 ArbVG. Once the deadline passes the dismissal stands, even if it could have been successfully challenged.

Two weeks is tight when documents still have to be gathered, an appointment arranged and the facts worked through. Legal advice must therefore be sought as soon as the notice has been received, not only once the search for a new position proves unsuccessful.

What to check

• Form and receipt. When was the notice received? Where a document is deposited for collection, the first day it was available counts, not the day it was collected.
• Notice period and date. Where the employer gives notice, the period under § 20 AngG is at least six weeks, rising with length of service to up to five months. Notice generally takes effect at the end of a quarter unless the 15th or the last day of the month was agreed. Since 1 October 2021 the same rules apply to blue-collar workers.
• Works council. Was it notified before the notice was given? A dismissal issued without observing the consultation procedure is legally ineffective (§ 105 para 2 ArbVG).
• Special protection against dismissal. Pregnancy, part-time parental work, military service, disability status or a works council mandate trigger their own protective provisions; without prior consent a dismissal is then ineffective.
• Final settlement. The items to check are outstanding overtime, compensation for untaken leave, pro-rata special payments and, depending on how the relationship ends, severance.

For employers: the most common mistakes

Most dismissals that are later contested in court are open to attack not because of the reasons given but because of the way they were carried out: the works council was not notified, or notified too late; the notice period was miscalculated; or the dismissal followed so closely on a complaint that a prohibited motive suggests itself. A brief review before the meeting costs little and avoids proceedings that take months.

Mutual termination: do not sign in the same meeting

Where a mutual termination agreement is offered, it should not be signed in the same meeting. It excludes any challenge and can affect entitlements towards the public employment service. One or two days for reflection are customary and are generally granted.