Behaviour-Related Dismissal: Your Rights

What Is a Behaviour-Related Dismissal?

A behaviour-related dismissal (verhaltensbedingte Kündigung) is a dismissal the employer bases on culpable conduct: you are alleged to have breached duties from your employment contract, for example by refusing to work, persistent lateness, or unexcused absence. It is one of three grounds for dismissal recognised by the Unfair Dismissal Act (Kündigungsschutzgesetz). The others are operational dismissal (your job is eliminated) and personal-related dismissal (you can no longer meet requirements through no fault of your own, most commonly an illness-related dismissal). The distinction matters: only with a behaviour-related dismissal is there an allegation, something you supposedly did wrong and could have changed.

It is anchored in law at § 1 Abs. 2 KSchG: a dismissal is socially unjustified if it is not based on reasons relating to the employee’s conduct (or their person, or urgent operational requirements). Conversely, this means: if the Unfair Dismissal Act applies to you, the employer must put forward and, if disputed, prove a valid behaviour-related reason. Mere dissatisfaction, a strained relationship with a supervisor, or a single minor slip-up is generally not enough.

The Unfair Dismissal Act does not apply automatically, though. Two conditions must be met: your employment must have lasted more than 6 months (§ 1 Abs. 1 KSchG), and the business usually employs more than 10 employees (§ 23 KSchG, with transitional rules for older contracts). If you work in a smaller business, different standards apply: the employer then does not need a socially justified reason but must still observe minimum limits. You can read what applies there under Dismissal Protection in Small Businesses. In the first 6 months, dismissal is considerably easier, more on this under Probationary Period in Employment Law.

The good news: behaviour-related dismissals are among the most error-prone dismissals of all. The employer must satisfy an entire chain of requirements: a concrete breach of duty, provable evidence, generally a prior warning notice, a negative prognosis, proportionality, and a balancing of interests, plus, where a works council (Betriebsrat) exists, proper consultation. If a single link in this chain breaks, the dismissal can be challenged. That is exactly your opportunity: to keep your job or to leave on significantly better terms.

The Warning Notice: Rarely Without Prior Warning

The most important hurdle before any behaviour-related dismissal is the warning notice (Abmahnung). The basic idea: if you can control your conduct, the employer must first give you the chance to change it. Dismissal is always the last resort. Under the settled case law of the Federal Labour Court, a behaviour-related dismissal without a prior, relevant warning notice is therefore generally disproportionate and thus invalid.

For a warning notice to support a dismissal, it must be more than a general reprimand:

• Specific: it must precisely describe the conduct complained of (what, when, where), not just vaguely claim "poor performance".
• With a warning function: it must make clear that repeat conduct would put your employment at risk.
• Relevant: the dismissal allegation and the warning notice must concern the same area of duty. If you were warned for lateness, you cannot simply be dismissed on that basis for an entirely different allegation.

When is a warning notice dispensable? According to the Federal Labour Court, only in exceptional cases: where the breach of duty is so serious that the employer has permanently lost trust, and you could not seriously have expected the conduct to be tolerated. This mainly covers property offences against the employer and comparably grave breaches of trust. Even then, it remains a case-by-case assessment: whether a warning notice was really dispensable is one of the most contested questions in unfair dismissal proceedings, and the burden of proof lies with the employer.

In practice, this means: first check whether you received a relevant warning notice at all, whether it is formally sound, and whether the warning notice and the dismissal allegation really concern the same area of duty. A great many behaviour-related dismissals fail on exactly this point.

Received a dismissal despite no warning notice? Use the severance calculator to check in 2 minutes what severance pay would realistically be as a guide.

Typical Reasons for a Behaviour-Related Dismissal

In practice, employers base behaviour-related dismissals mainly on the following allegations:

• Refusing to work: you persistently refuse to carry out assigned tasks. Important: the instruction itself must be lawful. Whether an instruction is covered by the employer’s right of direction, for example in a transfer, is often the very point in dispute.
• Repeated lateness: a single instance is not enough. It generally takes several incidents after a relevant warning notice before this can become grounds for dismissal.
• Unexcused absence: you fail to show up for work without notifying your employer or reporting incapacity for work. Taking leave without authorisation also falls into this category.
• Insulting supervisors or colleagues: gross insults can justify dismissal. Courts weigh up the circumstances, though: the trigger, the usual tone within the business, whether it was a one-off outburst or repeated behaviour, and freedom of expression as a counterweight.
• Private internet use during working hours: what matters is the workplace rules and the extent of use. A quick private message is not the same as hours of browsing. Without a clear ban and a warning notice, a dismissal on this basis rarely holds up.
• Feigning illness: faking incapacity for work is a serious breach of duty that, in individual cases, can even support a summary dismissal. However, the employer must prove the deception, and a medical certificate carries strong evidential weight.

Two things apply to all these categories. First: the allegation alone is never enough, the employer must prove the facts in proceedings. Second: even a proven breach of duty only results in a valid dismissal if proportionality, prognosis, and the balancing of interests also hold up, more on that shortly. Incidentally, if the employer dismisses not for a proven act but merely on suspicion, even stricter rules apply, including a duty to hear you out on the allegations before dismissing you.

Proportionality, Negative Prognosis, Balancing of Interests

A behaviour-related dismissal is not a punishment for the past, it is meant to prevent future breaches of contract. From this basic idea, the labour courts derive three tests, all of which the employer must pass:

1) Negative Prognosis

It must be expected that you will breach the contract again in future. This is exactly where the warning notice comes in: only if you breach your duties again in the same way, despite the warning, does this indicate a risk of repetition. If the warned incident lies far in the past, or you have visibly changed your conduct, the negative prognosis is often missing.

2) Proportionality: Dismissal as a Last Resort

Dismissal must be the mildest suitable means. If a warning notice, a transfer to a different role, or a dismissal with the option of altered terms (Änderungskündigung) would work, these take priority. If the conflict can be resolved with something less than ending the employment, the dismissal is disproportionate.

3) Balancing of Interests in the Individual Case

Finally, the courts weigh up the interests of both sides: the employer’s interest in ending the employment against your interest in keeping your job. Factors include the length of your service, a previously unblemished record, your age, maintenance obligations, the severity of the breach of duty, and your degree of fault. Someone with 15 years of unblemished service has much better odds after a single incident than someone already warned several times for the same thing. If a works council (Betriebsrat) exists, it must also be properly consulted before every dismissal, otherwise the dismissal is already invalid on that ground alone.

Long-serving, never warned, yet dismissed? The severance calculator shows you in 2 minutes what negotiating value your length of service carries.

Distinction: Behaviour-Related, Summary, and Extraordinary Dismissal

A behaviour-related dismissal is generally an ordinary dismissal: the employment only ends once the statutory or contractual notice period expires, and your salary continues until then. This is distinct from a summary dismissal: it ends the employment immediately and requires good cause under § 626 BGB, meaning facts that make it unreasonable for the employer to continue the employment even until the notice period expires. The same legal idea, that ongoing contractual relationships can be ended for good cause, appears generally in § 314 BGB; for employment relationships, § 626 BGB is the more specific rule.

The connection: both types of dismissal can be based on the same conduct, but the bar is set at a different height. Repeated lateness after a warning notice may support an ordinary behaviour-related dismissal, but generally it is not enough for a summary dismissal. Conversely, for serious allegations, employers often dismiss "summarily, alternatively with notice", in which case both dismissals are examined in the same proceedings. The summary variant is also subject to the 2-week notification deadline under § 626 Abs. 2 BGB. You can find the detailed legal breakdown with all requirements in our article on extraordinary dismissal.

What matters most to you is the financial difference: with an ordinary behaviour-related dismissal, you have the notice period as a buffer, potentially up to 7 more months of salary depending on your length of service. With a summary dismissal, this buffer disappears, and the suspension risk for unemployment benefit increases. In both cases, though, the same line of defence applies: check it, challenge it, negotiate.

The 3-Week Deadline to Claim: Your Most Important Date

No matter how flawed the dismissal is: it is treated as valid from the outset if you do not challenge it in time. Under § 4 KSchG, you must file a claim with the labour court within 3 weeks of receiving the written dismissal. Once the deadline passes, the deemed-validity rule of § 7 KSchG kicks in, and even a dismissal without a warning notice, without evidence, and without works council consultation can then hardly be undone. Late admission of a claim is only possible in narrow exceptional cases.

The deadline runs from receipt, meaning the day the dismissal letter reaches you in such a way that, under normal circumstances, you could take note of it, for instance by being placed in your letterbox. Whether you actually read the letter straight away makes no difference. So note the exact date of receipt and keep both the envelope and the letter. Our unfair dismissal claim deadline calculator works out exactly how many days you have left.

The unfair dismissal claim (Kündigungsschutzklage) is not an all-or-nothing route back into the business. In practice, it is mainly the vehicle for negotiating a fair exit: the labour court usually schedules a conciliation hearing just a few weeks after the claim is filed, and this quickly reveals how robust the dismissal really is. Very many proceedings end at this point with a settlement covering severance pay, the end date, a reference, release from work (Freistellung), and the wording of the reason for termination.

Severance Pay After a Behaviour-Related Dismissal: No Automatic Right, But Often Realistic

As a rule, there is no statutory entitlement to severance pay after dismissal, even after a behaviour-related dismissal. Nevertheless, many of these cases end with severance pay, simply because of risk distribution: if the dismissal is shaky, due to a missing or irrelevant warning notice, evidence problems, a failed balancing of interests, or a works council not properly consulted, the employer risks losing the case. They would then have to keep employing you and pay back wages for the entire duration of proceedings. Employers often buy off this risk through a settlement: the employment ends by mutual agreement, and severance pay is paid in return.

As a guideline for the amount, the rule of thumb of 0.5 gross monthly salaries per year of employment has become established. It is not an entitlement, but a negotiating anchor: the weaker the dismissal and the longer your length of service, the more is often achievable, correspondingly less where the allegation is overwhelmingly proven. You can read about the factors that influence the amount in detail under Severance Pay: Amount.

Worked Example: Sandra Fights Her Dismissal

Sandra has worked at her company for 8 years and earns €4,200 gross a month. She receives a behaviour-related dismissal for allegedly repeated lateness, but she was only ever warned once, and that was for a completely different matter. She files her unfair dismissal claim in time. At the conciliation hearing, it becomes clear that the warning notice is not relevant and the dismissal is unlikely to hold up. The parties agree to end the employment at the expiry of the ordinary notice period plus severance pay based on the rule of thumb:

This is usually complemented by a favourable reference and wording for the reason for termination that defuses the suspension-period risk. These figures are an example, not a promise, but they show why it’s almost always worth having your case reviewed. You can also see how severance pay develops with length of service under Severance Pay After 10 Years. And a note on tax: severance pay is taxable, but it can benefit from favourable taxation under the one-fifth rule (Fünftelregelung), details under Severance Pay and Tax.

How much could be possible in your case? Work through your own example in 2 minutes with the severance calculator.

Suspension Risk: What Happens to Your Unemployment Benefit?

A behaviour-related dismissal carries a risk that many people only discover after the fact: the benefit suspension period (Sperrzeit) for unemployment benefit. Under § 159 Abs. 1 Satz 2 Nr. 1 SGB III, the employment agency imposes a suspension period if, among other reasons, you gave cause for the dismissal through conduct in breach of your employment contract. That is exactly the allegation behind every behaviour-related dismissal. The suspension period is usually 12 weeks, and the total entitlement period for your unemployment benefit is also reduced by at least a quarter. You can find information on suspension periods directly from the Federal Employment Agency.

Importantly, the employment agency checks for itself whether there really was conduct in breach of the contract. It is not bound by the employer’s claims. In practice, though: accepting the dismissal without objection makes it easy for the agency to follow the stated reason. Fighting it improves your position twice over. If proceedings show the allegation does not hold up, or a settlement records that the employment did not end due to conduct in breach of contract, the suspension period can often be avoided. You’ll find all the details, exceptions, and ways out of a suspension period under Benefit Suspension Period for Unemployment Benefit.

Caution is also needed with an offered termination agreement (Aufhebungsvertrag): it looks like the convenient way out, but it can itself trigger a suspension period, because you would then be helping to end the employment yourself. Whether a termination agreement makes sense in your situation depends on how it is drafted and should be reviewed before you sign, not after.

Received a dismissal and worried about your unemployment benefit? Start with the severance calculator, then have it checked how the suspension period can be avoided.

Checklist: What You Should Do Now

Whether the dismissal is already on the table or has only been threatened: taking the right steps in the right order keeps all your options open. You’ll find the full guide under Received a Dismissal: What Now? Here is the short version for a behaviour-related case:

1. Don’t sign anything. No receipt confirmation with additions, no admission of fault, no termination agreement under pressure. Signatures are very hard to undo.
2. Document the date of receipt. Note the date and circumstances (handed over, placed in your letterbox) and keep the envelope and letter. The 3-week deadline to claim starts running from this day.
3. No spontaneous statements. Don’t be pushed into unprepared "clarifying conversations". Anything you say or write in the heat of the moment can be used against you later.
4. Secure documents. Your employment contract, all warning notices, payslips, relevant emails, rosters, time records, names of possible witnesses. Check in particular whether and for what you were warned.
5. Register as a jobseeker. Under § 38 SGB III you must register as a jobseeker at the latest 3 months before your employment ends, or within 3 days of learning the end date if the notice is shorter. This registration is required even if you file a claim.
6. Keep to the 3-week deadline. Your unfair dismissal claim must reach the labour court within 3 weeks of receipt (§ 4 KSchG). A letter of objection to the employer does not replace the claim.
7. Get a legal review. Was the warning notice relevant? Is the allegation provable? Does the balancing of interests hold up? Was the works council consulted? This review determines your strategy: staying in your job or leaving on better terms.

How Can We Help You?

Have you received a behaviour-related dismissal, or is one being threatened? We review your case together with lawyers specialising in employment law: whether the warning notice holds up, whether the allegation is provable, your chances of staying in your job or getting severance pay, and how the suspension period can be avoided.

We carry the risk: purely success-based, at no upfront cost. Start with an initial assessment using our severance calculator, it only takes 2 minutes, and the 3-week deadline won’t wait.