Given notice: the first two weeks decide

Notice of dismissal rarely arrives at a good moment, and the first reaction is usually not a legal one. Yet it is the first few days that determine whether anything can still be done.

The short deadline

In businesses with a works council, and after six months of service, a dismissal can be challenged – as socially unjustified, on the basis of a prohibited motive, or because it was a reaction to the legitimate representation of interests. The action must reach the Labour and Social Court within two weeks of receipt. Once the deadline passes the dismissal stands, even if it could have been successfully challenged.

Two weeks is tight when documents still have to be gathered, an appointment arranged and the facts worked through. So: seek legal advice as soon as the notice arrives – not once the search for a new position begins to stall.

What to check

• Form and receipt. When exactly was the notice received? Where a document is deposited for collection, the first day it was available counts, not the day it was collected.
• Notice period and date. Where the employer gives notice, the period under § 20 AngG is at least six weeks, rising with length of service to up to five months. Notice generally takes effect at the end of a quarter unless the 15th or the last day of the month was agreed. Since 1 October 2021 the same rules apply to blue-collar workers.
• Works council. Was it notified before notice was given? A breach of that prior procedure makes the dismissal challengeable.
• Special protection against dismissal. Pregnancy, part-time parental work, military service, disability status or a works council mandate trigger their own protective provisions; without prior consent a dismissal is then ineffective.
• Final settlement. Outstanding overtime, compensation for untaken leave, pro-rata special payments and – depending on how the relationship ends – severance.

For employers: the most common mistakes

Most successful challenges do not fail on the reasons given but on the implementation: the works council was not notified, or notified too late; the notice period was miscalculated; or the dismissal followed so closely on a complaint that a prohibited motive suggests itself. A brief review before the meeting costs little and avoids proceedings that tie up months.

A mutual termination is not a formality

Where a mutual termination agreement is offered, it should not be signed in the same meeting. It excludes any challenge and can affect entitlements towards the public employment service. One or two days for reflection are customary and are generally granted.