Ordinary Dismissal: Your Rights

What is an ordinary dismissal?

An ordinary dismissal (ordentliche Kündigung) is the standard way an employment relationship ends: one side, usually your employer, unilaterally declares that the employment relationship will end, while observing the applicable notice period. Until that period expires, everything continues as normal: you keep working (or are released from duty), receive your salary, and remain covered by social insurance.

Its counterpart is the extraordinary dismissal, usually without notice: it ends the employment relationship immediately and requires good cause that makes it unreasonable for your employer to continue the employment until the notice period would have expired. The bar for this is high. In practice, ordinary dismissal is therefore by far the more common case.

Both sides can give ordinary notice, by the way: as an employee, you don’t need a reason and simply have to observe your notice period. Your employer, on the other hand, must meet considerably more requirements once the Unfair Dismissal Act (Kündigungsschutzgesetz) applies. One special form is the change dismissal (Änderungskündigung): your employer gives notice while simultaneously offering to continue employing you under changed, usually worse, terms. You can fight this too, without immediately putting your job at risk.

Important to know: "ordinary" doesn’t automatically mean "valid". Even a dismissal that observes the correct notice period can fail due to formal errors, a missing works council consultation, or a lack of social justification. These are exactly the errors that often serve as leverage in severance negotiations.

Formal requirements for validity

Before the grounds for dismissal even come into play, the dismissal must be formally sound. Surprisingly many mistakes happen here in practice.

Written form and a hand-written signature

Under § 623 BGB, any dismissal of an employment relationship must be made in writing. This means a dismissal letter on paper with the hand-written signature of the person authorised to dismiss. The following are not sufficient:

• Dismissal by email, WhatsApp, or text message
• Verbal dismissal, even in front of witnesses
• A scanned or copied signature

A formally invalid dismissal doesn’t end the employment relationship and doesn’t trigger the deadline for filing a claim either. Still, don’t rely on this alone: have the situation reviewed, because your employer can simply reissue the dismissal in the correct form.

Receipt of the dismissal

The dismissal only becomes effective once it reaches you, meaning it enters your sphere of control, for example by being handed to you or placed in your letterbox. Receipt matters in two ways: it determines when your notice period starts running, and it triggers the 3-week deadline for filing an unfair dismissal claim. So note exactly when and how you received the letter.

A common misconception: that dismissal isn’t possible during holiday or sick leave. That’s not true. Your employer can generally give notice even then, and the letter usually reaches you as soon as it’s placed in your letterbox, even if you’re away. That’s exactly why, during critical periods, you should make sure your letterbox is emptied, so no deadline slips by unnoticed.

Authority of the signatory

If the letter isn’t signed by your employer personally but, say, by an HR manager or an authorised representative, and no original power of attorney is enclosed, you may be able to reject the dismissal immediately. Whether this makes sense in your specific case should be reviewed by a lawyer quickly, as speed matters here.

Notice periods at a glance

The statutory notice periods are set out in § 622 BGB. The basic period is 4 weeks to the 15th or the end of a calendar month. It applies to your own resignation and to employer dismissals during your first two years. If your employer gives notice, the period extends with your length of service, always to the end of the month from then on.

This is just an excerpt. You’ll find all the stages (1 to 7 months), special rules under collective agreements, and examples in the full overview: Notice period: all periods in the table.

Two points that are often overlooked: first, periods of employment before your 25th birthday also count; the earlier rule to the contrary has no longer applied since the European Court of Justice’s 2010 ruling. Second, your employment or collective agreement can provide for longer (sometimes different) periods; whichever rule is more favourable to you applies in case of doubt.

And what if your employer calculates the deadline incorrectly, for example by giving notice for too early a date? That generally doesn’t make the dismissal invalid altogether: it’s often interpreted as taking effect on the next legally permissible date. So don’t rely on a deadline error alone to save your job; but it can be an extra argument in negotiation and get you more paid time.

Does your employer need a reason?

That depends on whether the Unfair Dismissal Act (Kündigungsschutzgesetz, KSchG) applies to your employment relationship. It generally applies if you’ve worked for the company for more than 6 months and the company employs more than 10 people.

Small business and qualifying period: generally no reason required

In a small business and during your first 6 months anywhere, your employer can generally give ordinary notice without stating a reason. That doesn’t leave you unprotected, though: even there, the dismissal mustn’t be made in bad faith or be immoral, and it mustn’t breach anti-discrimination rules, for example on grounds of origin, sex, religion, disability, or age. Retaliatory dismissals, for instance as a reaction to you asserting legitimate claims, are also unlawful.

In companies covered by the KSchG: social justification required

If the Unfair Dismissal Act applies, an ordinary dismissal is only valid if it’s socially justified (§ 1 KSchG). That means it must be based on one of the three recognised grounds for dismissal, and your employer bears the burden of presenting and proving this in court. This is exactly where many dismissals fail, which considerably strengthens your negotiating position.

The three grounds for dismissal under the KSchG

The Unfair Dismissal Act recognises exactly three categories on which your employer can base an ordinary dismissal. Whichever one is stated in the dismissal letter (or at the latest in court) determines what your employer has to prove and where the typical weak points lie. So it’s worth looking at all three grounds when planning your strategy.

1. Operational dismissal

Here, your position is eliminated for business reasons, for example through restructuring, a site closure, or a drop in orders. Your employer must show that urgent operational requirements rule out your continued employment, and must carry out a social selection (Sozialauswahl): among comparable employees, they must select whoever the dismissal would hit least hard, based on length of service, age, maintenance obligations, and severe disability. Errors in the social selection are among the most common points of attack. More on this: operational dismissal and severance pay.

2. Conduct-related dismissal

This is linked to controllable misconduct, such as repeated lateness, refusal to work, or breaches of workplace rules. Usually, at least one relevant warning notice (Abmahnung) is required beforehand: your employer must give you the chance to change your behaviour. If the warning is missing, or relates to entirely different conduct, the dismissal is often open to challenge.

3. Personal dismissal

Here, the reason lies in your person, without any accusation of wrongdoing on your part. The practically most important case is illness-related dismissal: among other things, it requires a negative health prognosis and a significant impairment of operational interests, and your employer must have considered milder alternatives, such as company reintegration management. The requirements set by case law are high.

Works council consultation: invalid without it

If your company has a works council (Betriebsrat), your employer must consult it before every dismissal and inform it of the grounds for dismissal (§ 102 BetrVG). A dismissal issued without this consultation is invalid. A flawed or incomplete consultation can also bring the dismissal down.

But be careful: this error only helps you if you raise it, usually with an unfair dismissal claim within the 3-week deadline. Whether the consultation went correctly is often impossible to tell from outside; your employer has to demonstrate it in court. That’s why it’s practically always worth having it checked.

Your options after receiving the dismissal

Once the dismissal has reached you, the clock starts running: under § 4 KSchG, you have 3 weeks from receipt of the written dismissal to file an unfair dismissal claim with the labour court. If you let this deadline pass, the dismissal is generally treated as valid, even if it would actually have been open to challenge. A letter of objection to your employer doesn’t replace the claim.

Within these 3 weeks, you essentially have three options:

1. Accept the dismissal: you deliberately let the deadline pass. This can be fine if you want to leave anyway and no claims remain open. But check beforehand whether you’re leaving money on the table.
2. File an unfair dismissal claim: the court examines whether the dismissal is valid. Many cases end early, at the conciliation hearing, with a settlement, often including severance pay, a good reference, and clear terms on release from duty and remaining holiday.
3. Negotiate severance pay: the claim is often the most important leverage here. If the dismissal is legally shaky, your employer has a strong interest in reaching a settlement, because if they lose the case, they’ll have to keep employing you and pay back wages.

Sometimes your employer offers a termination agreement (Aufhebungsvertrag) after the dismissal, or instead of it. This can be attractive but carries risks: by signing, you give up your protection against dismissal, and under § 159 SGB III, a 12-week benefit suspension period (Sperrzeit) regularly applies to unemployment benefit if you end the employment relationship yourself without good cause. So don’t sign anything under time pressure, and have the offer reviewed first.

Regardless of that, you should register as a jobseeker with the Agentur für Arbeit in good time, generally no later than 3 months before your employment ends, or within 3 days of finding out if the notice is shorter. With an ordinary dismissal from your employer that isn’t your fault, losing your job as such generally doesn’t trigger a suspension period. You’ll find a step-by-step overview for the first few days here: Received a dismissal: what to do?

Find out what your position is worth: calculate your possible severance pay in 2 minutes with our severance calculator.

Severance pay for ordinary dismissal

For an ordinary dismissal, there’s usually no general statutory entitlement to severance pay. In practice, severance pay mainly arises in two ways:

Route 1: § 1a KSchG for operational dismissal

If your employer gives notice for operational reasons and includes a note in the dismissal letter that you can claim severance pay if you let the deadline for filing a claim expire, a statutory entitlement arises under § 1a KSchG: 0.5 gross monthly salaries per year of service. Periods of more than 6 months are rounded up to a full year. Whether you accept this offer or file a claim is a strategic question: in many cases, negotiation gets you more than the § 1a amount, in others, it’s a fair, quick resolution.

Route 2: Negotiation, usually in the shadow of a claim

Without a § 1a note, severance pay is almost always a matter for negotiation. The rule of thumb of 0.5 gross monthly salaries per year of service serves as orientation; it isn’t an entitlement, but a starting point. The more open to challenge the dismissal is, the stronger your position. You can read about which factors move the amount up or down here: Severance pay amount: what’s realistic?

Worked example: Sara

Example: Sara has worked at her company for 12 years and earns €4,200 gross per month. Her employer gives ordinary notice for operational reasons.

• Notice period: under § 622(2) BGB, 12 years of service means a 5-month notice period to the end of a calendar month. Her salary keeps being paid until then.
• § 1a severance pay: if her employer includes the § 1a KSchG note in the dismissal letter and Sara waives her right to sue, her entitlement comes to 0.5 x 12 x €4,200 = €25,200.
• Alternative: if Sara considers the dismissal open to challenge, for example due to a flawed social selection, she can file a claim within the 3 weeks and negotiate for higher severance pay as part of a settlement. The risk: if her employer wins, she could end up with nothing.

Tax and unemployment benefit

Severance pay is taxable income, but generally exempt from social security contributions. The tax burden can often be reduced using the so-called one-fifth rule (Fünftelregelung), which spreads the severance pay across five years for tax calculation purposes. Severance pay is generally not deducted from unemployment benefit, as long as the ordinary notice period was observed. Extra caution is needed if the employment relationship ends early in exchange for severance pay; this can trigger a period during which benefits don’t get paid.

Your numbers instead of Sara’s: work out your personal severance pay range directly in our severance calculator.

Special protection against dismissal: when extra protection applies

For certain groups, an ordinary dismissal is only possible under additional conditions or with official approval. These include in particular:

• Pregnant employees and mothers shortly after giving birth: dismissals are only possible here in narrowly limited exceptional cases, with official approval.
• Employees on parental leave: a far-reaching ban on dismissal, subject to prior approval, applies here too.
• Severely disabled people: approval from the integration office is generally required before dismissal.

Works council members and other groups also enjoy special protection. You’ll find an overview of all protected groups here: Special protection against dismissal: an overview. If you belong to one of these groups, an ordinary dismissal is particularly often open to challenge.

How can we help you?

You’ve received an ordinary dismissal and want to know whether it’s open to challenge and what’s in it for you? Our partner lawyers specialising in employment law review your case and negotiate on your behalf. We carry the risk: no upfront cost, paid only on success.

Start with an initial estimate of your possible severance pay: go to the severance calculator. Keep the 3-week deadline from receiving the dismissal in mind, it’s the most important lever for your negotiating position.