Employment agreement

In an employment contract are formulated the rights and obligations of a working relationship between employer and employee.

The following points are important parts of an employment contract:

  • What? – Description of the tasks which the employer can assign to the employee
  • Where? – Definition of the place where the employee would work
  • When? – Determination of the working time of the worker
  • How long? – Information on the periods of notice and, possibly, on the expiration of the employment contract.

The employment contract is also subject to statutory, business and, where applicable, tariff regulations.

Have your employment contract examined by a lawyer; if you are an employer, make sure to let an attorney design your employment contracts for you! Existing employment contracts should also be regularly reviewed and updated or harmonized.

Period of notice to terminate an employment contract in Germany

Employee

 The employer or employee may terminate at the end of a calendar month (or on the 15th). The period of notice is then four weeks.

Example:

Employee announces the termination on March 26, 2018.

The end of a calendar month is on March 31, 2018.

He leaves on April 30, 2018.

In his letter of dismissal of March 26, 2018 it must be written that his last day is on April 30, 2018.

Employer

The same periods of notice apply to the employer. The period of notice depends on the duration of the working relationship:

Duration of

 the working relationship

Period of Notice
2 Years 1 Month
5 Years 2 Months*
8 Years 3 Months *
10 Years 4 Months
12 Years 5 Months
15 Years 6 Months
20 Years 7 Months

* at the end of a calendar month

The longer the employment relationship, the longer is the relative termination period of notice.The duration of the employment contract is only calculated from the 25th birthday of the employee. Before that, the four-weeks deadline applies. In this case as well, tariff-contractual regulations or agreements of the employment contract apply before this legal regulation. 

Difference between “four weeks” and “one month” 

One month is longer than four weeks (4 x 7 days = 28 days). The employee can still leave on the beginning of the month or at the end of the month. However, if the period of notice is one month, he should present the termination letter a month before. 

Example:In the 30-day month = Present your termination letter at the latest on the 2nd.In the 31st month = Present your termination letter at the latest on the 3nd.

Shorter periods of notice The term of notice may be agreed in less than four weeks in the following cases:• For a maximum period of three months in a temporary job (Aushilfstätigkeit)• For a probationary period of maximum six months, then a notice period of two weeks applies• The employer has less than 10 employees(Trainees count 0, 20 hours/week-employees’ count 1/2 and up to 30 hours/week-employees´ count 3/4)

Special Provision in German labour law:

Severely Disable Persons

A notice period of at least four weeks applies to severely handicapped persons. The termination is only valid with a timely request for approval by the Integration Office.T he severely disable person can be dismissed with the shorter statutory deadlines.

Insolvency Proceedings

In the event of bankrupt, if the insolvency administrator fires the employee of a debtor, or if the employee quits his/her job in an insolvent company, the period of notice varies between three and one months. To the extent that statutory or contractual provisions provide for a shorter deadline, the shorter deadline applies.

Home-workers

Home-workers can be fired/ can quit at any time. If the employment relationship lasts longer than 4 weeks and the home-worker works for a client, the notice period is extended to two weeks.

Warning letter under labour law

In sport, the referee shows yellow and red cards to alert the players of their misconduct. “If you do not follow the rules, you are out! “ A similar system has been created also in the legal world, and that is represented by the “warnings”. A warning letter is similar to a yellow card.

A warning is therefore to point out wrong behaviours or bad performances and eventual warn of dismissal.What many do not know, is that warnings are often incorrectly formulated and for this reason legally vulnerable!If you receive a warning, immediately call an attorney! What is to be observed in the case of a warning?

Is the reason for warning missing?

A warning is only a warning when it is explicitly said what is happened, what is wrong with the employee´s behaviour etc. A mere description of the situation is inadequate and insufficient. For instance, in case of a smoking ban: if the employer writes that the employee smokes in his office, this is not yet considered a warning for misconduct. Only when it is expressly stated in the warning that the employee violates the rules, it can be considered a warning.

Only bad behaviours warnings

A dismissal may have behavioural, personal or business-related reasons, but can only be cautiously justified. The admonition may then only express a decree of order which is conditional on conduct. A special reason is required for extraordinary termination. This regulation is valid within the Employment Protection Legislation.

Only authorized persons are allowed to dismiss other employees

Both employers and employees can issue letters of warning. On the employer’s side, only authorized and qualified persons, including specialist and service supervisors, can issue warnings.

Warning topic =Reason for termination?

A letter of termination can be issued only after two letters of warning. The reason for dismissal has to be connected with the reason of warning. For instance, if an employee has been warned for alcohol consumption at work/alcoholism, this latter cannot be dismissed for „unpunctuality“.

Communication of dismissal

The employer must explicitly announce the termination of the contract. If he does not do so, the warning is not legally valid and thus the termination is void. Formulation example: “If you violate an obligation from the employment contract again, we shall take further measures which may lead to a termination of the employment relationship.” 

The warning has to be understandable:

It is important that the person making the announcement/writing the warning makes it clear to the person concerned that this latter´s behaviour needs to change. For example: if the employees are foreigners, the person in charge to give the information has to make sure to reach to the employees even if there are communication/language-difficulties.

There are no limits to the number of warnings that could be sent /received. The nature of the company, the nature and extent of the breach of duty, the position of the person concerned within the company or the consequences of the misconduct will influence the decision.

Form and Content of the Warning

The person in charge of writing and issuing the warning has to describe the behaviour and list exactly which rules have been broken by the person receiving the warning. He must clearly express what is wrong with the behaviour of the person warned.The warning can be given verbally. For reasons of evidence, however, a written warning is always recommendable.It is important to enclose evidence of the misconduct. If these are missing, the warning is doubtful.

 Removal of a warning from the personnel records

The admonished person is entitled to remove the warning from his personal file in the following cases:• If the warning has lost its effect- The person concerned has been transferred to another work area- The warning is so old that lost its effectiveness• No further misconducts occurred• It is a false or unlawful warningIf the employer is not willing to remove the warning, the person concerned may file a legal action to remedy the expulsion from his personnel records.Statistically, you have really good chances with a lawsuit to remove a warning from your personnel records.

Contact an attorney as soon as possible! We are here for you!

 

Termination of employment

Terminating an employment contract can be regulated by an ordinary or an extraordinary termination.

If the employer or the employee wants to withdraw from the employment contract before the period of notice, the following possibilities have to be taken into consideration:

  • Annulment
  • Exemption from work
  • Termination without notice

Please make sure to contact a lawyer in order to be perfectly aware of your choices, to be prepared for the consequences and to know exactly the advantages and disadvantages of your decision.