Ordinary Dismissal: Your Rights

What is an ordinary dismissal?

An ordinary dismissal (ordentliche Kündigung) is the standard way to end an employment relationship: one party, 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 your duties), receive your salary, and remain covered by social insurance.

Its counterpart is extraordinary, usually summary dismissal: it ends the employment relationship immediately and requires good cause that makes continuing the employment until the notice period expires unreasonable for your employer. The bar for this is high, which is why ordinary dismissal is by far the more common case in practice.

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, however, must meet considerably more requirements once the Unfair Dismissals Act (Kündigungsschutzgesetz) applies. One special form is the change notice (Änderungskündigung): your employer gives notice while simultaneously offering to continue the employment on altered, usually worse, terms. You can challenge this too, without immediately putting your job on the line.

Important to know: "ordinary" doesn’t automatically mean "valid". Even a dismissal with correct notice can fail due to formal errors, a missing works council consultation, or a lack of social justification. These are often exactly the levers that open the door to a severance negotiation.

Formal requirements for validity

Before the grounds for dismissal even come into play, the dismissal has to be formally correct. In practice, surprisingly many mistakes happen right here.

Written form and handwritten signature

Under § 623 BGB, every dismissal of an employment relationship must be in writing. That means a dismissal letter on paper with the handwritten signature of the person authorised to give notice. 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 dismissal that doesn’t meet the formal requirements doesn’t end the employment relationship and doesn’t start any deadline to sue either. Still, don’t rely on this alone, have the situation checked instead, 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 twice over: it determines when your notice period starts running, and it starts the 3-week deadline for an unfair dismissal claim. So note down exactly when and how you received the letter.

A common misconception: that a dismissal can’t happen while you’re on holiday or off sick. That’s not true. Your employer can generally still give notice, and the letter usually reaches you as soon as it’s placed in your letterbox, even if you’re away. For exactly this reason, make sure your letterbox is emptied during critical periods, so no deadline slips by unnoticed.

Authority of the person signing

If your employer doesn’t sign personally, but a HR manager or another representative does, without an original power of attorney attached, you may be able to reject the dismissal immediately. Whether that makes sense in your specific case should be checked by a lawyer right away, since speed matters here.

Notice periods at a glance

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

This is just an excerpt. You’ll find all the tiers (1 to 7 months), collective agreement specifics, and examples in the full overview: Notice period: all periods in the table.

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

And what if your employer calculates the period wrongly, for instance by giving notice for too early a date? That usually doesn’t make the dismissal invalid altogether: it’s often interpreted as notice to the next permissible date instead. So don’t rely on a calculation error alone to save your job; it can, however, be an extra argument in negotiations and get you more paid time.

Does your employer need a reason?

That depends on whether the Unfair Dismissals Act (Kündigungsschutzgesetz, KSchG) applies to your employment relationship. As a rule, it applies if you’ve been with the company longer than 6 months and the company employs more than 10 people.

Small businesses and the qualifying period: generally no reason needed

In a small business and during your first 6 months, your employer can generally give ordinary notice without stating a reason. That doesn’t leave you unprotected, though: even here, the dismissal must not be in bad faith or against public policy, 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.

Where the KSchG applies: social justification required

Where the Unfair Dismissals 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. Many dismissals fail exactly on this point, which considerably strengthens your negotiating position.

The three grounds for dismissal under the KSchG

The Unfair Dismissals Act recognises exactly three categories your employer can base an ordinary dismissal on. Which one is cited 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, the job disappears for business reasons, for example through restructuring, site closures, or a drop in orders. Your employer must show that urgent operational needs rule out continuing your employment, and must carry out a social selection (Sozialauswahl): among comparable employees, they must select whoever the dismissal would hit the 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 type relates to controllable misconduct, such as repeated lateness, refusal to work, or breaches of company rules. As a rule, at least one relevant warning notice (Abmahnung) must have been issued 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 fault being attributed to you. The practically most important case is illness-related dismissal: among other things, it requires a negative health prognosis and a significant impact on operational interests, and your employer must have considered milder measures such as a company reintegration programme. Case law sets high requirements here.

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 (§ 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 defect only helps you if you raise it yourself, usually by filing an unfair dismissal claim within the 3-week deadline. Whether the consultation went correctly often can’t be seen from the outside; your employer has to prove it in court. That’s why it’s practically always worth having it checked.

Your options after receiving the dismissal

Once you receive the dismissal, the clock starts ticking: under § 4 KSchG, you have 3 weeks from receiving the written dismissal to file an unfair dismissal claim at the labour court. If you let this deadline pass, the dismissal is generally treated as valid, even if it would otherwise 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 open claims remain. But check beforehand whether you’d be leaving money on the table.
2. File an unfair dismissal claim: the court examines whether the dismissal is valid. Many proceedings end early, at the initial conciliation hearing, with a settlement, often including severance pay, a good reference, and clear terms on release from work and remaining holiday.
3. Negotiate severance pay: the claim itself is often your strongest leverage here. If the dismissal is legally shaky, your employer has a strong interest in reaching a settlement, because losing the case means having 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: signing it means giving up your protection against dismissal, and under § 159 SGB III, a 12-week benefit suspension period (Sperrzeit) for unemployment benefit regularly applies if you end the employment relationship yourself without good cause. So don’t sign anything under time pressure, and have any offer reviewed first.

Regardless of that, you should register as a jobseeker with the employment agency (Agentur für Arbeit) in good time, generally at least 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 you didn’t cause yourself, losing your job as such generally doesn’t trigger a benefit suspension period. For a step-by-step overview of what to do in the first few days, see: Received a dismissal: what now?

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

Severance pay with an ordinary dismissal

There’s usually no general legal entitlement to severance pay with an ordinary dismissal. In practice, severance mainly arises in two ways:

Route 1: § 1a KSchG for operational dismissals

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 to sue expire, a statutory claim 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 sue is a strategic question: in many cases, negotiation achieves more than the § 1a amount, in others it’s a fair, quick way to settle.

Route 2: negotiation, usually alongside a claim

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

Worked example: Sara

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

• Notice period: under § 622(2) BGB, 12 years of service means a 5-month period, to the end of a calendar month. Her salary keeps being paid until then.
• § 1a severance: if her employer includes the § 1a KSchG note in the dismissal letter and Sara forgoes suing, her claim amounts to 0.5 x 12 x €4,200 = €25,200.
• Alternative: if Sara considers the dismissal open to challenge, for example because of a flawed social selection, she can sue within the 3 weeks and negotiate higher severance 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 free of social insurance contributions. The tax burden can often be eased using the so-called one-fifth rule (Fünftelregelung), which spreads the severance across five years for calculation purposes. Severance generally isn’t deducted from unemployment benefit, as long as the ordinary notice period was observed. Caution is especially needed if the employment ends early in exchange for severance, since that can trigger a suspension of benefit payments.

Your numbers instead of Sara’s: work out your personal severance range directly in the 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 groups include, in particular:

• Pregnant employees and mothers shortly after giving birth: dismissals here are only possible in narrowly limited exceptional cases, with official approval.
• Employees on parental leave: a far-reaching ban on dismissal, subject to prior approval, also applies here.
• Severely disabled employees: approval from the integration office (Integrationsamt) 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 especially likely to be open to challenge.

How can we help you?

Have you received an ordinary dismissal and want to know whether it can be challenged, and what’s realistically possible for you? Our partner lawyers specialising in employment law review your case and negotiate on your behalf, purely success-based, with no upfront cost.

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.