Employment Law2026-08-23

Redundancy Dismissal: Where Social Selection Falls Apart

With redundancy dismissals, the sticking point is rarely the business decision itself — almost always, it is a flawed social selection. I explain how I challenge this with a targeted request for information.

You have received a redundancy dismissal. Your employer is relying on job cuts, a restructuring or the closure of your department. Perhaps you are asking yourself why, of all people, it had to be you. A colleague doing comparable work gets to stay. This is precisely where I come in. And it is precisely here that most of these dismissals collapse before the courts.

In brief

You can barely challenge the business decision to cut jobs. The courts review it only for arbitrariness. Something else, however, is fully open to scrutiny: has your job genuinely ceased to exist as a result? Did the employer properly include all comparable colleagues in the selection? The most effective lever here is a request for information under section 1(3) sentence 1, second half-sentence of the Employment Protection Act (Kündigungsschutzgesetz, KSchG). On your behalf, I demand openly why the selection landed on you and not on someone else. In practice, this selection very often does not stand up to close examination.

How I can help you

Checking whether there is in fact a ground for dismissal within the meaning of section 1(2) KSchG
Making a request for information about the reasons for selection and the pool of comparable employees
Recalculating the social selection against the statutory criteria and exposing any gaps
Filing an unfair dismissal claim with the labour court within the time limit
Negotiating a severance payment or continued employment, where a settlement makes more sense than litigation

What the employer must prove — and what it need not

I keep two levels clearly apart, because the courts examine them with differing degrees of strictness:

The business decision itself — for example “we are closing the site” or “we are outsourcing the accounting to a service provider” — is a matter of entrepreneurial freedom. As a rule, the labour courts only examine here whether the decision is plainly unreasonable, irrational or arbitrary. That is rarely the case and generally not a promising line of attack.

The disappearance of your particular job, by contrast, is something the employer must set out concretely in the unfair dismissal proceedings and, if disputed, prove: how does the decision play out organisationally, which tasks fall away, and who takes on any residual work that remains? If this stays vague — for instance, a blanket reference to “cost savings” with no coherent plan — the dismissal is open to challenge on that ground alone. This holds regardless of the social selection.

The right to information as the real lever

The disappearance of the job may be established — yet the dismissal is still only valid on one condition. Out of several comparable employees, the employer must have selected the one who can best absorb the dismissal in social terms. Under section 1(3) sentence 1, second half-sentence KSchG, the dismissed employee has a free-standing right to information. On request, the employer must state the reasons for the selection. This includes, in particular, who it treated as comparable and drew into the selection. It also includes how it weighted the selection criteria.

I make this request on your behalf as early as possible and in writing. This is worthwhile for two reasons. If the employer fails to respond, or responds only evasively, that considerably weakens its position in the proceedings. It has to set out the proper selection in any event, and it can scarcely do so without coherent particulars. If, on the other hand, it does respond, I usually obtain the list of names and the criteria. That reveals whether the employer overlooked someone, placed them in the wrong grade, or removed them without a sound reason.

Who counts as comparable in the first place

Social selection concerns only employees at the same hierarchical and functional level. The comparison runs horizontally, not against better or worse paid positions. What is more, the decisive question is this: could the employer, exercising its right to direct work — that is, without altering your contract — have transferred you to another comparable post? This is one of the most common sources of error. Employers often draw the pool of comparable employees too narrowly, looking only at their own small department. Yet a transfer to another department within the same establishment would often have been possible under the contract of employment. If the employer misjudges the correct comparison pool, the entire selection is flawed. This holds regardless of how carefully it did its sums within the pool it drew too small.

The four criteria — and where corners get cut

Within the comparison pool, the employer must give adequate weight to four criteria under section 1(3) sentence 1 KSchG: length of service, age, maintenance obligations and severe disability. The statute prescribes no fixed weighting formula. Many employers work with points schemes. These are permissible in principle, but often open to challenge in the detail. An example: the employer has recorded maintenance obligations that are out of date. Or a known severe disability has simply not been entered into the system. These are exactly the details I examine using the information obtained through the request.

An important exception is set out in section 1(3) sentence 2 KSchG. The employer may remove from the social selection those employees whose continued employment is in a legitimate operational interest — for instance because of their knowledge, abilities or performance, or to safeguard a balanced staffing structure. They are then not treated as “comparable” for the purposes of the selection. In practice, employers frequently apply this exception too generously, in order to be rid of employees they find awkward but who are in fact more deserving of social protection. A blanket reference to “key-performer status” is not enough for this; the employer must justify the legitimate operational interest concretely and coherently.

The severance offer under section 1a KSchG

In the dismissal, the employer may expressly draw your attention to two things: that it is basing the dismissal on urgent operational requirements, and that you will receive a severance payment if you let the time limit for bringing a claim expire. In that case, the entitlement arises automatically when the notice period ends. The amount is 0.5 months’ pay for each year of employment. The statute rounds periods of more than six months up to a full year. That is convenient arithmetically, but it is no blank cheque. Before you decide for or against bringing a claim, I examine whether the severance offered actually reaches what could be secured through litigation.

A typical case from practice

A client from the logistics sector received a redundancy dismissal after his employer had “slimmed down” a department. On my request for information, it emerged that the employer had only compared the three colleagues in the immediate team. Under the contract of employment, however, a transfer to an identically structured department in the same building would have been perfectly possible. Working there was a markedly younger colleague, with shorter service and no maintenance obligations. Because, with the correct comparison pool, this colleague ought to have been part of the selection, the social selection was flawed overall. The dismissal was therefore invalid.

Common mistakes

Reacting too late: The time limit for bringing a claim runs regardless of whether you are still negotiating or waiting for a response from the employer.
Not making a request for information: Without this tool, it often remains unclear who the employer drew into the selection in the first place.
Being satisfied with the blanket statement “your post has been eliminated”, without questioning how it was implemented organisationally.
Accepting or rejecting a severance offer too hastily, without having the prospects of a claim assessed.
Negotiating with the employer off your own bat before I have examined the selection — this often leads to concessions made without due thought.

Frequently asked questions

Do I have to have the dismissal checked by a solicitor straight away?

Yes, this is urgent. Under section 4 KSchG, you must bring a claim before the labour court within three weeks of receiving the written dismissal. This applies if you wish to challenge its validity. If you miss this time limit, the dismissal will, as a rule, be treated as valid from the outset. That is so even if the social selection was grossly flawed.

Can I draft the request for information myself, or does it have to go through a solicitor?

Legally, you can make the request yourself, without any particular form. In practice, though, employers respond to a solicitor’s letter far more precisely and more quickly. The reason: they know that an evasive answer will count against them in the proceedings.

What happens if the employer refuses to provide the information?

A refusal does not automatically render the dismissal invalid. It does, however, considerably weaken the employer’s position in the proceedings, because it has to set out the proper social selection and, if disputed, prove it. Without coherent information, that is difficult for it to do.

As a long-serving employee, am I automatically protected?

No. Length of service is only one of four statutory criteria, alongside age, maintenance obligations and severe disability. The key-performer exception in section 1(3) sentence 2 KSchG can qualify this criterion. What is always decisive is the overall balancing exercise within the specific comparison pool.

Is it worth bringing a claim if I have already been offered a severance payment anyway?

That depends on how vulnerable the selection is to challenge. If the social selection is demonstrably flawed, unfair dismissal proceedings can often achieve more than the statutory severance offer under section 1a KSchG provides: a higher severance payment or the continuation of the employment relationship.

Your next step

Do not put off the review until shortly before the three-week time limit expires. Bring me your dismissal, together with — if you have it — information about comparable colleagues. In an initial consultation, I assess whether a request for information and an unfair dismissal claim are worthwhile. I then take care of both for you. You can find out more about my work in this area at /en/topics/employment-law.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-08-23.

Request an initial consultation What will it cost me?08091 617 7777