Termination is socially justified in three cases. However, certain rules apply to each individual case so that the dismissal is actually effective.
Employees cannot be fired without cause. The reasons and framework conditions for termination by the employer are regulated in
the Dismissal Protection Act
. As a result, a termination is “legally invalid if it is socially unjustified.” This is the case if the dismissal is “not caused by reasons relating to the person or behavior of the employee, or by urgent operational requirements that prevent the employee from continuing to work in this company”.
When is termination socially justified?
Conversely, this means that termination can be socially justified in three cases:
personal termination
Termination due to behavior
Termination due to operational reasons
The reasons must also be so significant that the termination appears appropriate in the individual case, taking into account the principle of proportionality after weighing up interests, explains the portal
Rechtsanwalt Online
. Separate regulations and requirements apply to each of the three cases. Only if these are verifiably met is termination effective and socially justified.
1. Personal dismissal
Like the lawyers
Dr. As Kluge and Fischer-Lange
explain on their website, dismissal for personal reasons presupposes that the employee is permanently unable to perform the work owed to him under the employment contract due to his personal skills and characteristics. Lawyers explain that because the employee cannot control the circumstances that lead to termination, no warning is usually necessary. All requirements that a personal termination must meet are:
Lack of ability or suitability to do the work:
This includes, for example, the loss of a work or driving license, a lack of language skills, a long-term illness or drug addiction.
Impairment of operational or contractual interests:
Merely endangering the employer's interests is not enough. The lawyers
Dr.
emphasize that concrete disruptions to the employment relationship must already have occurred.
Kluge and Fischer-Lange.
The skill
next to
Disruptions to operational processes can also place economic burdens on the employer.
Negative prognosis:
Since the dismissal for personal reasons is intended to avoid future burdens on the employer, the important question is whether the employee will be able to fully perform his work in the future. It must therefore be foreseeable that the problem that leads to termination will persist for a longer period of time.
Last resort:
Before dismissal, the employer must exhaust all reasonable measures to avoid dismissal. These include, among other things, transfer to another job as well as retraining and advanced training measures.
Balancing of interests:
The main question here is whether the disruption to the employment relationship is so important that the employer's interest in terminating the employment relationship outweighs the employee's interest in maintaining his or her job. The employee's social protection status plays a crucial role. This is made up of factors such as age, length of service and marital status.
2. Conduct-related dismissal
Termination for behavioral reasons must also be the last resort. Since this involves the employee's controllable behavior, a prior warning is almost always required - except in the case of particularly serious violations, explains the
Hasselbach law firm
: It is expected that the employer will change his behavior if he is informed of an impending dismissal. The basic requirement for a dismissal based on conduct is a breach of the employment contract. This includes:
Refusal to work
Violation of duties of consideration or loyalty (e.g. damage to work materials)
Undermining the relationship of trust (e.g. insult or theft)
Violation of the obligation to provide fringe benefits (e.g. violation of a ban on alcohol or smoking in the company)
In every termination case, it must be clarified whether there was a legitimate reason and whether the employer responded appropriately, emphasizes the
Hasselbach law firm
.
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3. Termination for operational reasons
In the case of dismissal for operational reasons, the cause of the termination of the employment relationship lies on the employer's side: because the employer is no longer in a position to continue to employ the employee. However, a company may only issue a dismissal for operational reasons after a specific decision has been made, explains the personnel service provider
Personio
. Other requirements that must be met are:
Operational reasons must be specific:
A company must explain to what extent a particular development will lead to job losses.
Employer must provide evidence:
The decision must be supported by facts or figures. For example, if departments are to be reduced in size, the employer must prove that fewer working hours will actually be required.
Urgency:
The emergency must be urgent and cannot be stopped by organizational, technological or other corporate measures.
Last resort:
Before the employee is terminated, the employer must check whether the employee cannot be employed elsewhere. If necessary, the employee can be transferred to another position or retrained through further training.
Social compensation is correct:
If only part of the workforce is laid off, the social criteria decide which employees have to go. The aim of social selection is that in the end those employees leave the company who are least harmed by it, explains
Personio
. The criteria that are included in the social compensation are length of service, age, maintenance obligations and severe disability.