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Employment law for employers

Attorney Christian Czirnich
Christian CzirnichAttorney (Rechtsanwalt)Tell me what it is about ↓

I advise owners, managing directors and HR managers before a dismissal or a written warning is issued or a settlement agreement is offered. That is where the mistakes happen: the wrong notice period, a missing works council hearing, an offer without time to consider it. After that I represent the business before the labour court.

Probation, small businesses, sickness: the typical situations

Three occasions where a call before the first step pays off. What you need to know is here at a glance.

Dismissal during probation

In the first six months the Protection Against Dismissal Act does not yet apply (§ 1 Abs. 1 KSchG). Where probation has been agreed, the notice period is two weeks (§ 622 Abs. 3 BGB). What still applies: written form (§ 623 BGB), the works council hearing (§ 102 BetrVG), and provable receipt. Special protection against dismissal applies from day one.

Dismissal in a small business

With ten or fewer employees, part-timers counted pro rata, general protection against dismissal does not apply (§ 23 Abs. 1 KSchG). What remains: the notice periods by length of service (§ 622 Abs. 2 BGB), the form, and a minimum of social consideration – an arbitrary dismissal or one in bad faith is void in a small business too.

Sickness and absences

Sickness is not a ground for dismissal in itself. A sickness-related dismissal requires a negative prognosis, a substantial impairment of business interests and a balancing of interests. After more than six weeks of incapacity in a year, workplace reintegration management must be offered first (§ 167 Abs. 2 SGB IX); without that offer, the business has to show in court that it would have made no difference anyway.

Special protection against dismissal

Pregnant women and mothers up to four months after giving birth (§ 17 MuSchG), severely disabled employees (§ 168 SGB IX), works council members (§ 15 KSchG, § 103 BetrVG), employees on parental leave (§ 18 BEEG) or carer’s leave (§ 5 PflegeZG): here the dismissal needs the prior consent of an authority or of the works council. Without it the dismissal is void, and the deadline for the application runs while you are still thinking.

Reference

The employee is entitled to a simple or a qualified reference (§ 109 GewO). It must be benevolent and truthful; coded wording and secret marks are not permitted (§ 109 Abs. 2 GewO). A short, clean reference spares you the dispute over every sentence.

Working time and records

The business must record the start, end and duration of daily working time; this follows from § 3 Abs. 2 Nr. 1 ArbSchG (Federal Labour Court, order of 13 September 2022, 1 ABR 22/21). Overtime beyond eight hours a day must be recorded (§ 16 Abs. 2 ArbZG). Without a system, the business often loses the overtime case on the burden of proof.

Fixed-term contracts

Without an objective reason, a fixed term of up to two years with at most three extensions is possible, but not after previous employment with the same employer (§ 14 Abs. 2 TzBfG). The fixed term requires written form before work begins (§ 14 Abs. 4 TzBfG); if it is missing, the employment is open-ended (§ 16 TzBfG).

Before the labour court

I usually reply to an unfair dismissal claim before the conciliation hearing, in full and with evidence. From the claim itself the court does not learn why notice was given, what was offered or what happened; from the reply it does. That shapes the settlement the court proposes at the conciliation hearing. In Munich the full hearing currently often follows only a year later; what speaks for the business therefore belongs in the file from the start.

What it costs

For businesses too, I charge in employment matters under the German Lawyers’ Fees Act (RVG), not by the hour. If your business has legal expenses insurance covering employment law, it generally pays my fees apart from the agreed excess; I submit the coverage request for you. Before the labour court each side bears its own lawyer’s fees at first instance, even if it wins (§ 12a ArbGG); that is why preparation before the dismissal saves the money the case would cost. More on costs and the fee calculator.

I represent clients throughout Germany. Advice by video or phone; court hearings by video (sec. 128a Code of Civil Procedure) or, where the court requires attendance, through local counsel appearing for me. The file stays with me. Office in Kirchseeon near Munich.

Tell me whom you want to dismiss and why – I will tell you whether and how.

I read every message myself and usually reply on the next working day. What you write to me is covered by legal professional privilege from the first word, even if no engagement comes about. The initial assessment is free of charge.

Prefer to call? 08091 617 7777

Encrypted in transit, stored encrypted, readable only by me. Details in the privacy policy.

Frequently asked questions

Do I have to issue a written warning before dismissing?
For a conduct-related dismissal, as a rule yes. The warning shows the employee that you will not tolerate the conduct and gives them the chance to change it. It can be dispensed with only for breaches so serious that tolerance is obviously out of the question. Dismissals for personal or operational reasons do not require a warning.
What notice period applies during probation?
Where a probationary period of up to six months has been agreed, the notice period is two weeks to any day (§ 622 Abs. 3 BGB). Without a probation clause the basic period of four weeks to the 15th or the end of a month applies from day one (§ 622 Abs. 1 BGB).
What does a lost unfair dismissal claim cost me?
The employment continues, and wages from the end of the notice period are payable as default-of-acceptance pay (§ 615 BGB), less what the employee earned elsewhere (§ 11 KSchG). Add your own lawyer's fees, which nobody reimburses at first instance even if you win (§ 12a ArbGG), and court fees based on a value of up to three months' salary (§ 42 Abs. 2 GKG).
May I dismiss an employee who is on sick leave?
During sickness, yes – incapacity for work does not prevent a dismissal from being served, including by delivery to the home address. Because of the sickness only under the conditions for a sickness-related dismissal set out above.
Do I need a lawyer for the conciliation hearing?
There is no requirement to be represented at first instance before the labour court (§ 11 Abs. 1 ArbGG). But the conciliation hearing is where the settlement is often concluded that fixes severance, end date and reference. Whoever sits there unprepared pays for it in the settlement.

Articles for employers

Dismissal During the Probationary Period: Two Weeks' Notice, but Not Without Rules

In the first six months, you as an employer can dismiss an employee on two weeks' notice and without giving a reason. Even so, probationary dismissals go wrong — over receipt, over the works council, over special protection against dismissal. Here is what applies, and by when you must decide at the latest.

Dismissal in a Small Business: What You Still Have to Get Right When the Unfair Dismissal Act Does Not Apply

With ten employees or fewer, the Unfair Dismissal Act (Kündigungsschutzgesetz) does not apply. That does not leave you with a free hand as an employer: good faith, the ban on discrimination, special protection for certain employees, the written-form requirement and the notice period all still apply.

Writing a Valid Warning Letter: The Three Elements Without Which It Counts for Nothing

A formal warning is the step that comes before a conduct-based dismissal. If it lacks the specific allegation, the reprimand or the warning of consequences, it will carry no weight later. What you as an employer must put in it, and what you must leave out.

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