An employee repeatedly comes to the office late, does not correctly document their working hours or persistently refuses to work. For the HR department, these are difficult cases in which the question is how to deal with such misconduct. The hardest measure would probably be an extraordinary dismissal. However, employers and HR professionals must consider a number of things. Time and again, labor courts come to the conclusion that an extraordinary dismissal is ineffective and should therefore not have been given.
In order for the employer to be able to effectively terminate an employment relationship extraordinarily, he must take into account important requirements. In this article, we explain what these are and how HR can do it.
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What is an extraordinary termination?
The extraordinary termination is often the last means, which the HR department resorts to end an employment relationship. In this context, extraordinary usually means that the specified period of notice is not met and that the employment relationship should be terminated with immediate effect, i.e. from one day to the next. Employment law is based on Section 626 (1) Civil Code (BGB) and thus defines extraordinary termination as termination without notice, for which always a important reason must be available.
Even though an extraordinary termination can — and often does — be made without notice, it does not have to. This is because extraordinary termination is also possible in due time, for example if it comes with a so-called social expiry period is connected. The employment relationship only ends at the end of this period, even if there is an important reason for termination. In the period up to dismissal, the employee therefore remains employed by the company and has the opportunity to prepare for it, for example by looking for a new job or a continuing education measure.
Employers generally grant a social expiry period in the case of regular, non-cancellable employment contracts agreed by collective agreements or in the event of plant closures. This then often complies with the collective, statutory or contractually agreed notice periods.
How do ordinary and extraordinary termination differ?
In contrast to extraordinary termination, ordinary termination always requires a period of notice, which results, for example, from the law, from the collective agreement or from another contractual provision (SECTION 622 BGB). This period gives the parties involved time to prepare for the termination of the employment relationship.
Is a prior warning required in the event of an extraordinary termination?
In principle, HR does not have to issue a warning before terminating the employment relationship through extraordinary dismissal. However, particularly in connection with behavioral termination, which is often preceded by an important reason, a previous warning required. The same principles apply here as in the case of ordinary behavioral termination.
Extraordinary behavioral dismissal therefore also presupposes an intentional or at least negligent breach of employment contract obligations by the employee. The HR department must first warn of this misconduct in order to at least give the employee the chance to improve their behavior in the future. He must know that his behavior is unacceptable and that there is a risk of consequences if repeated. This is about the proportionality of the termination. It should only ever be the last resort that the employer resorts to. Because in principle, it is not a question of immediately dismissing the employee due to his misconduct. Rather, it is a question of whether he will continue to behave in this way in the future and thus permanently disrupt the relationship of trust between employer and employee.
In addition, the HR department must consider whether it is really completely unreasonable for the company not to wait for the notice period after all.
However, is it a serious misconduct, for example stealing or grossly insulting a superior, the relationship of trust is usually so severely destroyed that a warning does not promise success. The HR department can then usually terminate the employment relationship extraordinarily even without prior warning.
Can employees also give extraordinary resignation?
Although in practice, extraordinary dismissals are usually issued by the employer, employees can also give extraordinary dismissal. The same legal requirements apply to them when making an extraordinary dismissal as for the employer. Employees therefore also need a valid reason and must usually first warn the employer before they can give extraordinary notice.
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Reasons for extraordinary termination
As previously mentioned, if an employer wants to dismiss an employee extraordinarily — or vice versa — he needs an important reason for doing so. But what does that mean exactly? Something must have happened which makes it unreasonable for the terminator “taking into account all the circumstances of the individual case and weighing up the interests of both parties to the contract” to continue the employment relationship until the termination period has expired (Section 626 BGB). But beware: There are some employment law pitfalls lurking here and it is urgently advisable to seek legal advice on a case-by-case basis in order to avoid an action against dismissal protection from the outset.
In principle, as in the case of an ordinary dismissal, employers can end the employment relationship for operational, personal or behavioral reasons, although in practice, termination is often carried out without notice due to conduct. Let's take a closer look at these reasons.
Operational reasons
The employer is normally not allowed to go alone Terminate extraordinarily for operational reasons, as he is not allowed to pass on the operational risk to employees.
Extraordinary company dismissal may only be considered if ordinary termination is not possible, for example in the case of employees who cannot be terminated under collective agreements, and the employer would have to continue to pay the employee despite the lack of employment opportunity. This may be the case, for example, if the workplace or an entire area of work has disappeared and the employer is unable to continue employing the employee despite using all reasonable means. The reasons for this could be, for example, internal restructuring or a significant decline in orders. As a rule, however, ordinary termination is given for operational reasons.
Personal reasons
According to the Federal Labour Court, the employer may terminate an employee extraordinarily for personal reasons if these reasons mean that the employee is permanently unable to perform the work owed. For example, illness, serving a prison sentence, loss of a required license, loss of a driving license for professional drivers or lack of professional or personal competence may mean that employees are unable to fulfill their work obligations.
Behavioral reasons
In practice, an extraordinary dismissal is often based on behavioral reasons, i.e. on significant breaches of employment contract obligations that the employee is said to have committed intentionally or negligently. These reasons are not specifically defined in the Act. However, there are a number of labor court decisions which have confirmed the existence of important reasons for an extraordinary termination of the employment relationship by the employer, for example:
- permanent refusal to work
- Repeated late arrival
- Theft and embezzlement
- bribing
- scams
- Self-leave
- Business-damaging statements
- gross insult to supervisor or employer
- sexual harassment
Reasons for extraordinary dismissal by the employee
Extraordinary dismissal by the employee is possible, for example, in the case of:
- late or missing salary payments
- insult or false suspicion
- discrimination
- sexual harassment
- Failure by the employer to comply with applicable occupational health and safety regulations
- Offences committed by supervisors
- bullying
- experienced manipulations or violence at work
- health risks due to exercise
These reasons may therefore entitle employees not to comply with the applicable notice period and to immediately terminate the employment relationship.
Examples of extraordinary terminations from case law
Examples from the case law of the labor courts show that it usually depends heavily on the individual case whether an extraordinary termination without notice is valid or not.
Insults via WhatsApp
If an employee is insulting about colleagues or supervisors in private WhatsApp groups, may employers resort to employment sanctions, the Federal Labour Court recently ruled in a verdict. Massive insults and incitement against colleagues represent a significant violation of honor, the FOPH ruled, and therefore justify labor law sanctions such as immediate dismissal (Section 626 BGB). Accordingly, the employer does not simply have to accept inhuman statements. Employees, in turn, should not rely on the fact that such chats are always confidential.
Self-leave
If an employee takes a leave of absence on his own authority, this may give rise to an extraordinary dismissal without notice, decided by the BAG (judgment of 20.5.2021, file no. 2 AZR 457/20). According to the BAG, self-leave represents a significant breach of duty in the employment relationship and entitles the employer to dismiss without the need for a prior warning.
Threat to a superior
A serious threat to superiors or colleagues and/or their relatives by an employee is considered an important reason for immediate dismissal, the FOPH recently decided (Judgement of 28.2.2023, file number 2 AZR 194/22). However, employers must be able to prove such violations in court.
Extraordinary termination process
HR managers must be particularly careful when terminating employees extraordinarily. For the effectiveness of an extraordinary termination, in addition to a important reason Other requirements are required so that these can also be valid in court in the event of a dispute (Section 626 BGB). As a result, it is not only decisive why, but also how the termination is made.
1. Milder remedies
Extraordinary dismissal is one of the most serious measures for the employee. It therefore appears advisable that the employer first consider whether there is a more lenient remedy as an alternative. A transfer or assignment of another job or an ordinary (timely) termination would be possible.
In this context, it is important to have a Employer-side warning, which should be given before an extraordinary dismissal so that this warning gives the employee the opportunity to change his behavior. Only in a few exceptional situations can a prior warning be completely waived, for example if the breach of contractual duty is so serious that tolerating the conduct is objectively unreasonable. As a rule, these are cases where the trust necessary for an employment relationship no longer exists or can be restored.
Only if the termination really represents the ultimate ratio and, taking into account all the circumstances, no more lenient means are available, can it be considered justified.
2. Hearing of the works council
If there is a works council in the company, it is after Section 102 Works Constitution Act (BetrVG) to listen before dismissal. In order for the works council to get a comprehensive picture of the situation, the employer must explain why he would like to terminate the employee extraordinarily. This also includes information such as age or length of service, which may have an attenuating effect on the employee.
The employee himself does not have to be consulted beforehand. Unless it is a notice of suspicion. This exists when there is initially only suspicion and the employee's misconduct has not been proven. Only in these cases must the employee be heard in order to comment on the allegations.
3. Compliance with forms and deadlines
It is particularly important that the termination complies with the legal deadlines and formal requirements. An extraordinary termination must be made in accordance with SECTION 623 BGB always be explained in writing.
If the termination has been given effectively, the employment relationship is considered terminated with immediate effect. In short: The termination is immediate (therefore extraordinary). However, this is not to be confused with the two-week period, which, after becoming aware of the relevant reasons, remains with the employer to also give notice of dismissal (Section 626 (2) BGB).
The employer should also know that he is not obliged to state the reason for dismissal in the letter of dismissal (exception, for example, for trainees or workers on maternity leave). Rather, it is sufficient if this is available objectively. If the employee requests that the reason be stated, this should be reported in writing.
4. Special protection against dismissal
If an employee has special protection against dismissal, certain formalities must be observed for effective dismissal.
If, for example, a severely disabled employee who has been employed for more than six months is to be dismissed without notice, the approval of the Integration Office must be obtained. The same applies to other groups of people who fall under special protection against dismissal (e.g. pregnant women, mothers, works councils, employees on parental or care leave, trainees).
When is an extraordinary termination ineffective in any case?
If there is no important reason for termination which entitles the employer to terminate the employment relationship extraordinarily and without notice, such termination is generally declared ineffective. As a reminder, there must be good cause for an extraordinary dismissal, such as a serious breach of duty in which the employee has intentionally or negligently breached his obligations under the employment contract. And the employer must be able to prove that. If that is not the case, he will not get away with the dismissal.
Extraordinary terminations also often fail due to the above-mentioned notice period. In fact, if the employer or the employee fails to deliver the notice of termination to the other party within 14 days, the extraordinary termination is ineffective, even if the reason for dismissal was justified.
If there is a works council in the company and it is not or is not properly consulted before an extraordinary dismissal, the termination is also ineffective. The same applies to the dismissal of a severely disabled team member if the representative body for the severely disabled has not been involved or the approval of the Integration Office is missing.
How should employers send an extraordinary notice of termination?
To ensure that the letter of termination is delivered on time and securely, HR managers should consider a few points:
- Written notification by registered letter with acknowledgement of receipt: The recipient must confirm receipt of the letter. If he is not present at the time of delivery, he receives a notification and the letter is only considered delivered when he has picked it up and confirmed receipt on the return receipt.
- Compliance with legal deadlines and formalities: An extraordinary notice of termination must always be made in writing and signed (Section 623 BGB). The electronic transmission of a notice of termination, for example as a PDF or photo via e-mail or messenger, is not sufficient for effective termination, ruled by the Munich Regional Labor Court in 2021. In addition, as mentioned above, the employer has the obligation to send the employee the extraordinary notice of termination within two weeks.
- Maintaining traceability and delivery: In many cases, the employer sends the letter of termination by registered letter or hands it over in the presence of another person. Timely receipt of the notice of termination is very important, especially if there is a legal dispute. The employer must then prove in court that the letter of dismissal was served in due time. It is therefore advisable to record all steps and measures in connection with the delivery of an extraordinary notice of termination in writing.
Does your company need assistance with extraordinary cancellations?
If an employee has to leave the company involuntarily, there is usually potential for conflict. If, for example, an ineffective dismissal is given, the employee concerned can sue the company within three weeks of receipt of the notice of termination. This can involve significant financial and legal risks for a company.
Twinwin can relieve you as much as possible in such cases, because our modules are tailored precisely to the requirements of HR work. For example, if it is possible to separate from an employee amicably and out of court, this can be achieved by concluding a termination agreement. You can find a template for this in our template pool. There, you have access to a variety of legally secure and up-to-date HR documents at any time, saving you time, money and nerves.
This question & answer-Twinwin module is also very popular with HR learners. As a clever support in everyday HR life, it provides you with reliable information on all employment law topics.
The separation manager and the freelancer check offer immediate help with high-risk topics, such as termination. If you're actually considering terminating an employee, we highly recommend that you use the Separation Manager to get a risk assessment for a potential separation, additional information, useful tips, and best practices.
If necessary, we can also provide a seamless transfer to careful selected partner law firms who consist of specialists in employment law and can offer you legal support through attractive pre-negotiated hourly rates.
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