Termination for behavioural reasons
Dismissal for misconduct – requirements, written warnings and your rights
Dismissal on disciplinary grounds requires that the employee has culpably breached a contractual obligation and that it is unreasonable for the employer to continue employing them. In practice, there is often a lack of valid written warnings, the balancing of interests favours the employee, or the dismissal is disproportionate. Our specialist employment lawyers in Augsburg will review your dismissal and ensure your rights are upheld.
Conditions for dismissal on disciplinary grounds
Dismissal on grounds of conduct under Section 1(2) of the German Employment Protection Act (KSchG) requires a culpable breach of duty on the part of the employee. The employer must prove four conditions: a specific breach of duty, a prior relevant warning (as a rule), a negative prognosis regarding future conduct, and a balancing of interests that favours the employer.
The key point is that the dismissal is not intended as punishment for past misconduct, but to protect against future breaches of contract. This is why the negative prognosis is a central element – the employer must justify why they must expect further breaches of duty. This is precisely where the prior warning comes into play: if the employee breaches their duties in a similar manner again after receiving a warning, this points to a negative prognosis.
Furthermore, dismissal must be a last resort (the ultima ratio principle). The employer must assess whether less severe measures would suffice – such as a further written warning, a transfer or a notice of change. Employees in Augsburg should ensure that the employer has thoroughly considered all less severe measures.
The formal notice as a condition of validity
Before proceeding with a dismissal on disciplinary grounds, the employer must, as a rule, have issued at least one valid and relevant written warning. ‘Relevant’ means that the warning must relate to misconduct of the same nature as the subsequent grounds for dismissal. A warning for arriving late does not justify dismissal for unauthorised personal use of the internet.
The warning itself must be formally correct – it must specify the misconduct in concrete terms (with date and facts), call for a change in behaviour, and threaten consequences under employment law in the event of a repeat offence. If there is no valid warning or if the warning itself is flawed, the dismissal based on it is generally invalid. At our law firm in Augsburg, we regularly find that the warning letter itself contains flaws that render the entire dismissal invalid.
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Assessing dismissal for misconduct: Is the dismissal open to challenge?
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Common reasons and frequent mistakes
There is a wide range of grounds for dismissal on disciplinary grounds. The key factor is whether the employer has complied correctly with the legal requirements.
Common reasons for termination
Typical grounds for dismissal on disciplinary grounds include: repeated unexcused absences or tardiness, refusal to work, breaches of work instructions, unauthorised secondary employment, private use of the internet during working hours, insulting superiors or colleagues, theft or embezzlement (even of items of low value), and breaches of confidentiality obligations. The severity of the breach determines whether a prior warning is required or whether dismissal can take place immediately.
Common mistakes made by employers
Common weaknesses: The written warning is not relevant (the allegation differs from that in the notice of dismissal); the written warning is procedurally flawed; the employer has undermined the warning function by issuing repeated warnings without consequences; the balancing of interests does not take sufficient account of long-term, fault-free employment; or the works council was not properly consulted. Particularly in the case of long-serving employees in Augsburg, the balancing of interests often favours the employee.
Your options: an action for unfair dismissal and a severance payment
Even in cases of dismissal for misconduct, employees often have a good chance of successfully challenging the decision. The strict requirements regarding written warnings, proportionality and the balancing of interests provide numerous grounds for challenge.
Prospects of success in the unfair dismissal claim
You must file an action for unfair dismissal with the Augsburg Labour Court within three weeks of receiving the notice of dismissal (Section 4 of the German Unfair Dismissal Act). The chances of success are often better than employees expect: many dismissals on disciplinary grounds fail due to the absence of a warning or an incorrect warning, issues of proportionality, or the balancing of interests. Each party bears its own costs in the first instance.
Termination without notice for misconduct
In the event of particularly serious breaches of duty, the employer may terminate the employment contract without notice (Section 626 of the German Civil Code). Here too, a balancing of interests must take place, and the notice of termination must be given within two weeks of the employer becoming aware of the grounds for termination. In practice, summary dismissal is often combined with ordinary dismissal as a fallback option. Even if the summary dismissal is invalid, the ordinary dismissal may remain in force – our specialist solicitors will also examine this.
Frequently asked questions about dismissal for conduct-related reasons
Further information on employment law
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This information does not constitute legal advice in individual cases.
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