The short answer: anyone who resigns themselves generally gets no severance pay
The damage is twofold. Alongside the missing severance pay, resigning yourself regularly triggers a twelve week suspension period for unemployment benefit (§ 159 para. 1 sentence 2 no. 1, para. 3 SGB III). When employers actually have to pay is explained in the guide Anspruch auf Abfindung (currently available in German only).
The essentials at a glance
- No statutory entitlement: anyone who resigns themselves generally receives no severance pay from the employer.
- On top of that, the suspension period: twelve weeks without unemployment benefit (§ 159 SGB III), unless there is good cause.
- Exceptions: severance clauses in the employment contract, collective agreement or social plan, damages under § 628 para. 2 BGB, a sprinter clause in a termination agreement.
- The better route: negotiate a termination agreement before making any declaration yourself, or wait for the employer to give notice.
Why the employer does not pay when the employee resigns
Severance pay buys the employer out of litigation risk. If the employer gives notice, they face an unfair dismissal claim, at the end of which the labour court can dissolve the employment relationship under §§ 9, 10 KSchG against payment of severance. Money is how the employer avoids that risk.
With an employee’s own resignation this risk does not exist. The employment relationship ends without proceedings, there is nothing to buy off, so without a special reason the employer pays nothing either.
Exceptions sit in the contractual documents. An employment contract, collective agreement, works agreement or social plan can provide for severance pay even on resignation; these documents should be reviewed before any declaration is signed. The most expensive mistake in this situation is resigning before taking advice: once the declaration is received, the negotiating position is spent.
The second cost: a twelve week suspension period for unemployment benefit
Anyone who ends their own employment and thereby intentionally or through gross negligence brings about their own unemployment receives a suspension period for giving up work, unless there was good cause (§ 159 para. 1 sentence 2 no. 1 SGB III). Resigning yourself is the standard case this provision covers.
The suspension period lasts twelve weeks (§ 159 para. 3 SGB III). The cases in which it can be shortened are explained in the guide to the suspension period.
Good cause prevents the suspension period, for instance a provable job to move straight into. Which reasons the employment agency accepts and how the suspension period changes the entitlement is set out in the guide to the suspension period for unemployment benefit.
Three routes to severance pay compared
Three routes lead to severance pay despite wanting to leave. The table shows the requirement, leverage and risk of each route; the sections after it explain the details.
| Route | Requirement | Leverage | Risk | Legal basis |
|---|---|---|---|---|
| Negotiate a termination agreement | No resignation given yet; employer agrees | Protection against dismissal, the cost of training a replacement, a quiet exit | Suspension period if the agreement is not checked | Freedom of contract, negotiation |
| Wait for the employer’s dismissal | Employer gives notice; claim possible within 3 weeks | The employer’s litigation risk, an offer under § 1a KSchG, court ordered dissolution | Uncertain waiting time; provoked misconduct triggers your own suspension period | § 1a, §§ 9, 10 KSchG |
| Resignation without notice for good cause | Conduct by the employer in breach of contract carrying the weight of good cause; declaration within 2 weeks | Damages, potentially plus severance pay under §§ 9, 10 KSchG | High threshold, burden of proof on the employee | § 628 para. 2, § 626 BGB |
Route 1: negotiate a termination agreement instead of resigning
Anyone who wants to resign and still receive severance pay proposes a termination agreement with severance to the employer before giving their own notice. The goal stays achievable: the employment relationship ends on the desired date, but for money.
After your own resignation, this negotiation is over. The employer then already has what they would have to pay for in a termination agreement: the end of the contract on a fixed date.
Protection against dismissal, the cost of training a replacement and the employer’s interest in a quiet exit serve as leverage. What is ultimately paid depends on length of service and the negotiating situation; the guide on how much severance you are entitled to gives points of reference.
A termination agreement can itself trigger a suspension period. So do not sign any draft unchecked; what matters is set out under Reviewing a termination agreement.
Route 2: wait for the employer to give notice
Anyone who waits for the employer’s dismissal keeps every lever. They can bring an unfair dismissal claim against the dismissal within 3 weeks (§ 4 KSchG), and it is precisely this litigation risk that creates the willingness to pay from which severance arises. An overview of every route after an employer’s dismissal is given in the guide Severance pay after dismissal.
For a redundancy dismissal the employer can offer severance under § 1a KSchG in the dismissal letter: 0.5 months salary per year of employment, if the employee lets the deadline for filing a claim pass. Periods of more than 6 months are rounded up to a full year.
If the labour court dissolves the employment relationship because the dismissal was socially unjustified and continuation is unreasonable, on the employee’s application, it sets a severance payment under §§ 9, 10 KSchG. The ceiling is twelve months salary, fifteen from age 50 with 15 years of service, and eighteen from age 55 with 20 years of service.
A warning belongs here too. Anyone who provokes a dismissal through conduct in breach of contract likewise risks suspension period consequences; such a strategy should be reviewed by a lawyer before the first step.
Route 3: resigning without notice and claiming damages under § 628 para. 2 BGB
§ 628 para. 2 BGB attaches directly, as a statutory basis for a claim, to an employee’s own resignation. If the employer causes the resignation through conduct in breach of contract, for instance significant arrears of pay or serious breaches of duty, they must compensate the damage caused by the ending of the employment relationship.
The requirements are narrow. The employer’s conduct must carry the weight of good cause within the meaning of § 626 para. 1 BGB, and the resignation without notice must be declared within 2 weeks of learning of the decisive facts (§ 626 para. 2 BGB).
The Federal Labour Court has determined the scope of the claim. Under BAG, judgment of 26 July 2001, case 8 AZR 739/00, compensation covers the loss of earnings up to the end of the notional ordinary notice period; an appropriate severance payment under §§ 9, 10 KSchG for the loss of protection against dismissal can be added. The BAG confirmed this line with its judgment of 22 April 2004, case 8 AZR 269/03.
The hurdle is high. The employee bears the burden of proving the employer’s conduct in breach of contract, and without this proof the claim fails while the suspension period rule under § 159 SGB III applies. So never declare a resignation without notice without legal advice beforehand.
Special case: the sprinter bonus and turbo clause
Termination agreements and social plan situations often include a sprinter clause or turbo clause (Sprinterklausel, Turboklausel). It lets the employee leave before the agreed end date and increases the severance payment in return, typically by all or part of the salary saved over the remaining term.
This is the only case in which your own declaration of resignation brings in money. Without a written contractual basis the entitlement does not exist, and exercising it must also be declared in writing.
Anyone who uses the clause without a new job following on directly still carries the risk of a suspension period for unemployment benefit.
Checklist: what to check before you resign
Six points should be clarified before you make any declaration.
- Check the employment contract, collective agreement and social plan for severance clauses.
- Get written confirmation of your next job before you resign.
- Document the employer’s conduct in breach of contract with dates, amounts and witnesses.
- Propose a termination agreement with severance to the employer as an alternative.
- Clarify the suspension period risk for your specific case.
- Get a free initial assessment before signing anything.
