Unfair dismissal claim

What is an unfair dismissal lawsuit?

An unfair dismissal claim allows you to have the validity of the dismissal reviewed by a court. The key point: the primary legal aim of the proceedings is to continue the employment relationship. In practice, however, it very often ends in a settlement because both sides want planning security – often combined with a severance payment, a better reference, or clear regulations on leave of absence and remaining vacation time.

Important: A lawsuit does not automatically mean "severance pay." Severance pay is usually the result of negotiations.

Requirements and typical procedure

1) Time requirement: the deadline is crucial

• You must file a lawsuit within 3 weeks of receiving the written notice of termination.
• This deadline is a cut-off date: once it has passed, the termination is generally considered to have been accepted as valid – even if its content could be challenged.

2) Factual points that are often relevant

• The termination must be in writing.
• It is often relevant whether the Unfair Dismissal Protection Act applies (usually: more than 6 months in the company and more than 10 employees).
• It makes sense to file a lawsuit if there are indications that the termination could be legally flawed.

3) What happens after the lawsuit is filed?

After the lawsuit has been filed, the court usually sets a conciliation hearing date quickly. If an agreement cannot be reached, correspondence follows and then the chamber hearing (main hearing). A settlement is also possible at this stage.

Which dismissals can be challenged?

In principle, employees can take action against any termination—regardless of whether it is:

• Ordinary termination (with notice): Depending on the applicability of the KSchG, the court examines, among other things, whether the termination is socially justified (due to operational, behavioral, or personal reasons).
• Extraordinary/termination without notice (immediate): The employer must provide a compelling reason that makes continuation unreasonable.

Particularly common "points of attack" are:

• Formal and procedural errors (e.g., missing or incorrect works council consultation)
• Unclear or contradictory reasons
• Errors in social selection (in the case of termination for operational reasons)
• Discriminatory motives or abusive practices

Can you only sue if there is "protection against dismissal" under the KSchG?

No. You can take legal action even without general protection against dismissal. The difference lies in the standard of review:

If the KSchG is applicable: The employer must justify the dismissal on social grounds. The hurdles are higher – often with better chances of success.

If the KSchG does not apply (e.g., small business or short period of employment): There is a more rigorous examination of whether, for example, discrimination, unethical behavior, or abuse of rights is present. The threshold is different, but employees are not "unprotected."

The 3-week period

The period begins when the written notice of termination is received, i.e., when you receive it or when it comes into your sphere of control (e.g., when it is placed in your mailbox). The decisive factor is that the lawsuit is received by the court in good time , not when you send it.

Important:

• Verbal notices of termination are invalid and do not trigger a deadline for filing a lawsuit.
• E-mails or text messages do not replace the written form.
• In the case of courier or mail delivery, the date of delivery/mailing is generally decisive.

Procedure for dismissal protection proceedings in practice

Step 1: File a lawsuit

The lawsuit is filed with the competent labor court. It can be submitted in writing or declared "on record" at the court office. Usual core claim: Determination that the termination did not end the employment relationship.

Step 2: Conciliation hearing (comes first)

The conciliation hearing is an early attempt at reaching an agreement under the direction of the judge. Many proceedings end here.

Typical points of settlement:

• Severance pay
• Termination at a later date
• Reference letter
• Leave of absence and remaining vacation time

What is a settlement? A settlement is a recorded agreement that replaces a court ruling and is immediately binding. Therefore, only agree to it if everything—especially the date, severance pay, reference, vacation, and leave of absence—has been clearly regulated.

Step 3: Correspondence

If no agreement is reached, the employer must provide written justification as to why the termination should be effective. You respond to this with a rejoinder—a further written statement from you as the plaintiff.

Step 4: Chamber hearing

In the main hearing, in addition to the professional judge, one honorary judge from the employer's side and one from the employee's side will also decide. A settlement is still possible – otherwise a judgment will be issued.

Step 5: Decision and legal remedies

Possible decisions:

• Lawsuit wins: Termination invalid – continued employment in principle; often also issues of default of acceptance wages.
• Lawsuit loses: Termination remains valid.
• Settlement: Agreement instead of judgment.

Appeals can be lodged against judgments within one month.

How long does such a proceeding take?

That depends greatly on the court and the case.

Common guidelines:

• Conciliation hearing: usually within a few weeks of the lawsuit being filed
• Chamber hearing: often several months later
• Total: roughly six months to about a year, depending on the complexity and willingness to settle

An important point for planning: During the ongoing proceedings, negotiations often take place regarding economic support (unemployment benefits, other job, severance pay, continued employment).

Missed the deadline: is everything lost?

Usually yes, but there is a rare exception: subsequent admission.

Typical requirements:

• You were prevented from filing the lawsuit on time through no fault of your own.
• You file the lawsuit within two weeks of the obstacle being removed.
• You can provide credible evidence of the obstacle.

Recognized circumstances include, for example, serious illness or absence through no fault of your own. Typically, the following are not sufficient: ignorance of the deadline, vacation, financial problems, inability to find a lawyer.

Objecting to the termination does not replace the lawsuit. Very important: A letter to the employer ("I object" / "I reject") does not stop the deadline for filing a lawsuit. Only a lawsuit filed in a timely manner secures your rights.

When is it particularly worthwhile to file a lawsuit?

Typical situations with good leverage:

• Procedural or formal errors (e.g., works council)
• Questionable or changing reasons for termination
• Social selection in the case of dismissal for operational reasons is contestable
• Indications of disadvantage or discrimination
• Strategic: better bargaining position, time saved, better reference

It is often less favorable in cases of clearly provable serious misconduct or if an exceptionally strong, binding offer is already on the table, but even then it can make sense to have it reviewed.

Costs of an unfair dismissal lawsuit

The fees depend on the amount in dispute, which is usually three gross monthly salaries. This results in:

• Attorney's fees (according to RVG)
• Court costs (in the case of a judgment; in the case of a settlement, there are often no court costs)
• Expenses (e.g., travel, copies)

Special feature in labor law (first instance): Each party bears its own attorney's fees, regardless of who wins.

Legal expenses insurance may cover the costs, depending on the policy. Those who cannot afford it financially should consider legal aid or have the lawsuit financed by Team Abfindung.