If you want to challenge a dismissal, you generally have only three weeks to do so. After that, the dismissal is usually treated as effective even if it would otherwise have been invalid.
The three-week deadline
An employee who considers a dismissal invalid must bring an action before the labour court within three weeks after receiving the written notice of dismissal (§ 4 sentence 1 KSchG). The period begins when the notice is received, normally when it reaches your letterbox or is handed to you, not only when you actually read it.
If the deadline is missed, the dismissal is deemed effective from the outset (§ 7 KSchG). A late action is admitted only in narrowly defined exceptional circumstances (§ 5 KSchG).
What you should check immediately
• Form: A dismissal must be in writing and bear an original signature (§ 623 BGB). A dismissal by email, text message or messenger service is invalid.
• Authority: If the notice is signed not by the employer personally but by another person without an original power of attorney being enclosed, it may in some circumstances be rejected. This must be done without delay, in practice within a few days (§ 174 BGB).
• Protection against dismissal: The German Protection Against Dismissal Act generally applies if the employment relationship has existed for more than six months and the establishment normally employs more than ten employees (§§ 1, 23 KSchG). Additional special protection applies, for example, to pregnant employees, employees on parental leave and severely disabled persons.
• Works council: If a works council exists, it must be consulted before every dismissal (§ 102 BetrVG).
Do not forget the Federal Employment Agency
Irrespective of any court action, you must generally register as a jobseeker with the Federal Employment Agency no later than three days after learning that your employment will end (§ 38 para. 1 SGB III). Late registration can result in a suspension period for unemployment benefit.
What about severance pay?
There is no general statutory entitlement to severance pay. In practice, however, severance payments are often agreed as part of a settlement, particularly where the validity of the dismissal is disputed. Bringing an action within the deadline is often important for maintaining a strong negotiating position.
For employers
From an employer's perspective, many issues must be addressed before notice is given: correct form, applicable notice periods, proper consultation of the works council, social selection and provable receipt of the notice. Errors in these areas are often difficult to remedy later. We advise companies on the preparation and implementation of personnel measures.
This article provides a general overview and does not replace advice on an individual matter.