The dismissal by the employer is regulated by many provisions protecting the employee.

First of all, according to the Dismissal Protection Act, the employer’s dismissal (observing the notice period) has to be “socially justified” by an objective reason concerning

• the person of the employee (e.g. frequent absence due to short time illness; long time illness without perspective to return),
• his misconduct (e.g. no information about illness and no medical certificate) or
• urgent operational reasons (e.g. closure, redundancies due to drop in orders).

The dismissal due to misconduct requires a warning in advance.

The dismissal due to urgent operational reasons can be invalid, if the employee who was dismissed can claim that he deserves more protection than another employee (because of his age, more years of service, more maintenance obligations or a severe disability) and therefore the other employee should have been dismissed instead of him. The employer can counter that the other employee is more important for the establishment due to his knowledge, skills and performance or to keep a good staff structure.

In any case, the dismissal has to be necessary and reasonable. It is necessary if another reaction would not help (e.g. warning, relocation). It is reasonable if the circumstances of the single case are considered. A discriminating dismissal cannot be “socially justified”.

The Dismissal Protection Act applies after 6 months of service in an establishment with more than 10 employees.

If the Dismissal Protection Act is not applicable, the employer needs no reason for the dismissal. However, the dismissal can be invalid, if the dismissal is a discrimination on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual orientation (General Equal Treatment Act).

In any case, the dismissal can be contrary to public policy (1) or good faith (2).

• Example for (1): dismissal based on revengefulness or retaliation
• Example for (2): mistimed dismissal (The employee receives the dismissal after a bad work accident on the same day in the hospital right before the surgery.)

The employer is not allowed to dismiss an employee

• in order to punish him because he claimed his rights
• in order to prevent the transfer of the employment relationship to the transferee in context with the transfer of the undertaking
• if the dismissal observing the notice period is excluded
• by employment contract (e.g. between singing the contract and beginning of work; in a fixed-term contract the dismissal is excluded by law and can be introduced by the contract) or
• by bargaining agreement with the trade union (e.g. for employees with many years of service and a certain age) or
• by law (e.g. for the obligatory internal data protection officer in a private company)

Before the dismissal, the employer has to contact

• the works council and aks for his statement (but the employer is allowed to give notice even if the works council does not agree)
• the representative body of the employees with a severe disability and ask for his statement, if an employee with a severe disability shall be dismissed
• the works council and ask for his consent if a member of the works council shall be dismissed with immediate effect (dismissal observing the notice period is excluded)
• the authorities and ask for their consent if a pregnant woman or a young mother shall be dismissed, an employee in parental leave or spending time on home care for a member of his family, an employee with a severe disability
• the unemployment agency in case of mass redundancies and consult the works council.