Conduct-related dismissal: your rights

What is a conduct-related dismissal?

A conduct-related dismissal (verhaltensbedingte Kündigung) is one your employer bases on blameworthy conduct: you are said 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 Dismissal Protection Act (Kündigungsschutzgesetz). Alongside it stand the dismissal for operational reasons (your role is eliminated) and the dismissal for personal reasons (you’re no longer able to perform, through no fault of your own, the most common case being dismissal due to illness). The distinction matters: only with a conduct-related dismissal is there an allegation, something you allegedly did wrong and could have changed.

It is legally anchored in § 1 para. 2 KSchG: a dismissal is socially unjustified unless it is based on reasons relating to the employee’s conduct (or person, or urgent operational requirements). In other words: where the Dismissal Protection Act applies to you, your employer must present and, if disputed, prove a solid conduct-related reason. Mere dissatisfaction, a strained relationship with a manager, or a single careless mistake usually isn’t enough.

The Dismissal Protection Act doesn’t apply automatically, though. Two conditions must be met: your employment must have lasted more than 6 months (§ 1 para. 1 KSchG), and the business must, as a rule, employ more than 10 people (§ 23 KSchG, with transitional rules for older contracts). If you work in a smaller business, different standards apply: your employer doesn’t need a socially justified reason but still has to observe minimum limits. You can read what applies there under dismissal protection in small businesses. In the first 6 months, by contrast, dismissal is considerably easier, more on that under probation period in employment law.

The good news: conduct-related dismissals are among the most error-prone dismissals of all. Your employer must satisfy an entire chain of requirements: a specific breach of duty, provable evidence, usually a prior warning notice, a negative prognosis, proportionality and a balancing of interests, plus proper consultation of the works council where one exists. If a single link in that chain breaks, the dismissal can be challenged. That’s exactly your opportunity: either to keep your job or to end it on much better terms.

The warning notice: it’s usually not possible without one

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

For a warning notice to support a dismissal, it has to be more than a general telling-off:

• 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 a repeat will put your employment at risk.
• Relevant: the dismissal allegation and the warning notice must concern the same area of duties. If you were warned for being late, that notice cannot, without more, support a dismissal based on an entirely different allegation.

When is a warning notice dispensable? According to the Federal Labour Court, only exceptionally: for breaches so serious that your employer’s trust is destroyed beyond repair and you couldn’t seriously have expected the conduct to be tolerated. This mainly covers offences against your employer’s property and comparably severe breaches of trust. Even then, it remains a case-by-case assessment: whether a warning notice was truly dispensable is one of the most frequently disputed questions in unfair dismissal proceedings, and the burden of proof lies with your employer.

In practice, this means: first check whether you were given 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 duties. A great many conduct-related dismissals fail at exactly this point.

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

Typical grounds for a conduct-related dismissal

In practice, employers base conduct-related dismissals mainly on these 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 your employer’s right to direct work (Direktionsrecht), for instance in a transfer, is often exactly what’s disputed.
• Repeated lateness: isolated instances aren’t enough. It usually 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 reporting in or notifying incapacity to work. Taking leave on your own initiative, without approval, also falls into this category.
• Insulting managers or colleagues: gross insults can justify dismissal. Courts weigh things up, though: what triggered it, the usual tone in the workplace, a one-off outburst versus repeated behaviour, and freedom of expression as a counterweight.
• Private internet use during working hours: what matters are the rules at your workplace and the extent of the use. A quick private message is different from hours of browsing. Without a clear ban and a warning notice, a dismissal on this basis rarely holds up.
• Feigning illness: faking incapacity to work is a serious breach of duty that can, in individual cases, even support a summary dismissal. But your employer must prove the deception, and a doctor’s certificate carries significant evidential weight.

Two things apply across all these categories. First: the allegation alone is never enough, your employer must prove the facts in proceedings. Second: even a proven breach of duty only leads to a valid dismissal if proportionality, prognosis, and the balancing of interests also check out, more on that shortly. If your employer dismisses you not for a proven act but merely on suspicion, even stricter rules apply, among other things you must be given a hearing on the allegations before the dismissal.

Proportionality, negative prognosis, balancing of interests

A conduct-related dismissal isn’t a punishment for the past, it’s meant to prevent future breaches of contract. From this basic idea, the labour courts derive three tests, all of which your employer must pass:

1) Negative prognosis

There must be reason to expect 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’ve visibly changed your behaviour, the negative prognosis is often missing.

2) Proportionality: dismissal as a last resort

Dismissal must be the mildest suitable measure available. If a warning notice, a transfer to a different role, or a dismissal with an offer of altered terms (Änderungskündigung) would work, those measures take priority. If the conflict can be resolved by something short of ending the employment, the dismissal is disproportionate.

3) Balancing of interests in the individual case

Finally, the courts weigh up both sides’ interests: your employer’s interest in ending the employment against your interest in keeping your job. Factors include how long you’ve worked there, a previously unblemished record, your age, maintenance obligations, the seriousness of the breach, and your degree of fault. Someone who’s worked 15 years without complaint has far better odds over a one-off 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 invalid on that ground alone.

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

Distinction: conduct-related, summary, and extraordinary dismissal

A conduct-related dismissal is, as a rule, an ordinary dismissal: the employment only ends once the statutory or contractual notice period (Kündigungsfrist) expires, with your salary continuing until then. This is different from summary dismissal (fristlose Kündigung): it ends the employment immediately and requires good cause under § 626 BGB, meaning facts that make continuing the employment unreasonable for your employer even until the notice period would otherwise end. 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 different heights. Repeated lateness after a warning notice may support an ordinary conduct-related dismissal but is generally 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 para. 2 BGB. You’ll find the full legal detail, with all requirements, in our article on extraordinary dismissal (außerordentliche Kündigung).

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

The 3-week claim deadline: your most important deadline

No matter how flawed the dismissal is: it’s deemed valid from the outset if you don’t challenge it in time. Under § 4 KSchG, you must file a claim at the labour court within 3 weeks of receiving the written dismissal. If the deadline passes, the deemed-validity rule in § 7 KSchG kicks in, and even a dismissal issued without a warning notice, without evidence, and without consulting the works council becomes almost impossible to undo. Late admission of a claim is only possible in narrow exceptional cases.

The deadline runs from receipt (Zugang), meaning the day the dismissal letter reaches you in a way that you could, under normal circumstances, take note of it, for example by being put in your letterbox. Whether you actually read it right away doesn’t matter. So note down the exact date of receipt and keep the envelope and letter. Our unfair dismissal claim deadline calculator will work out exactly how many days you have left.

The unfair dismissal claim isn’t an all-or-nothing route back into the business. In practice, it’s mainly the vehicle for negotiating a termination on fair terms: the labour court usually schedules a conciliation hearing (Gütetermin) just a few weeks after the claim is filed, and it quickly becomes clear how solid the dismissal really is. A great many cases end at this point with a settlement that covers severance pay, the termination date, your reference, release from work (Freistellung), and the wording of the reason for termination.

Severance pay after a conduct-related dismissal: no automatic entitlement, but often realistic

Even after a conduct-related dismissal, there is, as a rule, no legal entitlement to severance pay on dismissal. Even so, many of these cases end with severance pay, and the reason is simply risk allocation: if the dismissal looks shaky (a missing or irrelevant warning notice, evidence problems, a failed balancing of interests, a works council not consulted), your employer risks losing the case. They would then have to keep employing you and pay back wages for the entire length of proceedings. Employers often buy their way out of that risk through a settlement: the employment ends by mutual agreement, and severance pay is paid in return.

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

Worked example: Sandra challenges her dismissal

Sandra has worked at her company for 8 years and earns €4,200 gross a month. She receives a conduct-related dismissal for allegedly repeated lateness, but she was only ever warned once, and that was about a completely different matter. She files an unfair dismissal claim in time. At the conciliation hearing it becomes clear the warning notice isn’t 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:

A favourable reference and wording of the termination reason that defuses the suspension period risk are usually included as well. These figures are an example, not a promise, but they show why it’s almost always worth getting your case checked. You can also see how severance pay develops with length of service under severance pay after 10 years. One more note on tax: severance pay is taxable, but it can benefit from preferential taxation under the one-fifth rule (Fünftelregelung), details under severance pay and tax.

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

Suspension period risk: what happens to your unemployment benefit?

A conduct-related dismissal carries a risk many only discover afterwards: the benefit suspension period (Sperrzeit). Under § 159 para. 1 sentence 2 no. 1 SGB III, the employment agency imposes a suspension period if, among other things, you gave cause for the dismissal through conduct that breached your employment contract. That’s exactly the allegation behind every conduct-related dismissal. The suspension period is usually 12 weeks, and your total entitlement period for unemployment benefit is also cut by at least a quarter. You’ll find the employment agency’s information on suspension periods directly at the Bundesagentur für Arbeit.

Importantly, the employment agency assesses for itself whether contract-breaching conduct really occurred. It isn’t bound by your employer’s claims. Still, in practice, accepting a dismissal without objection makes it easy for the agency to follow the stated reason. Fighting back improves your position twice over. If proceedings show the allegation doesn’t hold up, or a settlement records that the employment didn’t end because of contract-breaching conduct, the suspension period can often be avoided. You’ll find all the details, exceptions, and ways to avoid the suspension period under benefit suspension period on unemployment benefit.

Caution is also needed with any termination agreement (Aufhebungsvertrag) you’re offered: it may look like the easy way out, but it can itself trigger a suspension period, because you’d be helping to end the employment yourself. Whether a termination agreement makes sense in your situation depends on how it’s drafted and should be checked before you sign, not afterwards.

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 to do now

Whether the dismissal is already on the table or merely 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 to do? Here’s the short version for conduct-related cases:

1. Don’t sign anything. No acknowledgement of receipt with added remarks, no admission of fault, no termination agreement under pressure. Signatures are hard to undo.
2. Document the date of receipt. Note the date and circumstances of receipt (handed over, placed in your letterbox) and keep the envelope and letter. The 3-week claim deadline runs from that day.
3. Don’t give spontaneous statements. Don’t let yourself be pushed into unprepared “clarifying conversations”. Anything you say or write in the heat of the moment can later be used against you.
4. Secure your documents. Your employment contract, all warning notices, payslips, relevant emails, rotas, time-tracking records, and the 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 least 3 months before your employment ends, or within 3 days of learning the end date if the notice is shorter. This registration is mandatory even if you file a claim.
6. Observe 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 your employer doesn’t replace the claim.
7. Get it checked legally. 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 employed or ending the employment on better terms.

How can we help you?

Have you received a conduct-related dismissal, or is one on the horizon? We review your case together with lawyers specialising in employment law: whether the warning notice holds up, whether the allegation is provable, what your chances are of staying employed or securing severance pay, and how the suspension period can be avoided.

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