Notice period
What is a termination?
A notice of termination describes the reason for bringing about the end of a contract. The word termination is often used to describe the end of an employment relationship. The aim of a termination is that two contracting parties no longer work together on a specific date. From an employment law perspective, the aim is that an employer and an employee no longer have to work together on a specific date. This in turn implies that remuneration no longer has to be paid.
What is a notice period?
The notice period is the period between the declaration of the intention to terminate a contract and the resulting actual end of the contract.
If there were no notice period in contract law, none of the contracting parties would have the chance to react accordingly. It would then not be possible to plan, provide a replacement or ensure ongoing operations. With regard to a notice period under employment law, this period helps both the employer and the employee to reorganize themselves. Employees have the chance to find a new employer. Employers have the opportunity to fill the vacant position with another or new employee.
Does a notice period always have to be observed?
No. A notice period only applies in the case of ordinary termination. If extraordinary termination is declared, no notice period must be observed.
When does the notice period begin?
A notice period begins when the notice of termination is received by the contractual partner. The day of delivery is not included in the exact calculation of the notice period in accordance with Section 187 (1) of the German Civil Code (BGB).
Are there different notice periods?
The notice period is determined either by the employment contract, a collective agreement or the law. The notice period is usually stipulated in the employment contract by the management or the vicarious agents from the HR department.
These must at least comply with the legal requirements. However, they can also be interpreted more favorably, e.g. longer, for the benefit of the employee. If a collective agreement applies, the notice periods defined in the collective agreement shall apply. In no case may the conditions for the employee be interpreted worse than the law.
If no agreement on the notice period is formulated, the statutory regulations according to BGB § 622 always apply according to the duration of employment.
What are the statutory notice periods?
If no notice period is agreed in the employment contract, the statutory provisions according to BGB § 622 apply. The statutory standard is as follows: As an employee, notice of termination can be given with a notice period of 4 weeks to the 15th or the end of a calendar month.
The notice period that the employer must observe depends on the length of employment. The longer an employee is employed by a company, the longer the notice period.
The statutory notice periods are defined as follows:
- 0 to 6 months (probationary period) = 2 weeks’ notice
- 7 months to 2 years = 4 weeks to the 15th or end of the calendar month
- 2 years = 1 month to the end of the calendar month
- 5 years = 2 months to the end of the calendar month
- 8 years = 3 months to the end of the calendar month
- 10 years = 4 months to the end of the calendar month
- 12 years = 5 months to the end of the calendar month
- 15 years = 6 months to the end of the calendar month
- 20 years = 7 months to the end of the calendar month
A shorter notice period than the statutory requirement is only possible for temporary employment of up to 3 months.
The longer notice periods only apply to termination by the employer. If the employee gives notice, the minimum notice period of four weeks or the contractually agreed notice period always applies. Longer notice periods may be agreed at any time. In this case, the notice periods for the employee may not be longer than those for the employer.
How long is the notice period during the probationary period?
If an employee is dismissed within the agreed probationary period, a notice period of 14 days applies. Unless a longer period has been agreed.
How can the notice period be calculated?
How the exact minimum notice period is calculated is defined in § 187 ff. BGB (German Civil Code). The day on which the notice of termination is served may not be included in the calculation.
| Termination by the 15th of the following month: | Cancellation at the end of the month: |
| 31 days of the 18th month | 31 days of the 3rd month |
| 30 days of the 17th month | 30 days of the 2nd month |
| February 15. | February 28 January 31 |
| February 16 in leap years | February 29 the 1st |
Specific examples for calculating the notice period for employers
In addition to the theoretical definition, you can read a few practical examples here. This will give you a better feel for the procedure and calculation. In the examples, the rules from § 187 ff BGB are applied.
One-year employment
An employee who has been employed for one year is to be dismissed on June 30. A notice period of four weeks – 28 days – must then be calculated. This means that the notice period begins on 03.06. However, it is important to note that the notice itself must be served by 02.06 at the latest, as the day of service may not be included in the calculation.
Multi-year employment
An employee who has been with a company for 18 years is to be dismissed with notice as of March 31. A statutory minimum notice period of 6 months is defined here. This means that this employee must be terminated as of September 30 of the previous year.
What is the notice period for extraordinary termination?
In the case of extraordinary termination, also known as termination without notice, the employer terminates the employment relationship from one day to the next. In order for an employer to do this, they need an important reason. According to Section 626 (2) BGB, a notice period of two weeks is defined here.
What is the notice period during the probationary period?
As described above, the notice period within the probationary period is less than four weeks. This means that the Dismissal Protection Act does not yet apply. This means that you can terminate your contract at any time during the probationary period with just two weeks’ notice. And even without giving reasons.
But be careful: this deadline is only valid if it is formulated in the employment contract.
Notice periods for collective agreements?
The notice period is determined either by the employment contract, a collective agreement or the law. If a collective agreement applies, the notice periods defined in the collective agreement apply. Under no circumstances may the conditions for employees be less favorable than those laid down by law.
What happens if the notice period is incorrect?
Errors can occur in the calculation and wording of notices of termination. These can have consequences such as invalidity of the notice of termination or automatic replacement with the statutory provisions. These are often fought out in the course of an action for protection against dismissal. The usual consequences are
- Incorrectly calculated notice periods are replaced by statutory minimum notice periods and can lead to invalidity.
- Incorrectly worded notices of termination can lead to invalidity.
Tips for the right termination
- Legal advice – In principle, each termination must be treated as an individual case. It is difficult to make a general statement. Legal advice from a specialist employment law firm is strongly recommended.
- Preparation – A notice of termination should be prepared well and in good time. Take your time to think through the notice, deadlines and wording. Also plan to deliver it on time, e.g. if days fall on a weekend.
- Wording – Make sure you use the correct wording. Add an addendum that will take effect if you have miscalculated the deadline. A common formulation is: “We hereby give you notice of termination in due time to xx.xx.xxxx Alternatively to the next possible date.”
Exceptions and special features
In addition to the generally defined notice periods, there are areas of law that can affect employment law in special cases. These include the following cases:
Small companies
Small companies with fewer than 20 employees do not have to comply with termination deadlines of the 15th of the month or the end of the month. This means that these companies have the freedom to give notice to their employees on any day. However, the notice period of four weeks also applies here.
Extraordinary termination
In the case of extraordinary termination, also known as termination without notice, the employer terminates the employment relationship from one day to the next. In order for an employer to do this, they need an “important reason”. According to Section 626 (2) BGB, a notice period of two weeks is defined here.
Severely disabled employees:in
If no other collective agreement applies, Section 169 SGB IX stipulates a minimum notice period of 4 weeks for severely disabled employees. In this case, an application must also be submitted to the Integration Office in advance. Without the approval of the Integration Office, the dismissal would be invalid.
Ongoing insolvency proceedings
In insolvency proceedings, the notice period is limited to a maximum of three months for both employers and employees in accordance with Section 113 sentence 2 InsO. It does not matter how long the employee has been employed.
Fixed-term employment contract
Ordinary notice of termination cannot be given in a fixed-term employment contract. The contract ends at the agreed end date. However, individual agreements can be made.
Disclaimer
We would like to point out that the texts on this website and the associated legal articles are provided for non-binding information purposes and do not constitute legal advice in the strict sense. In individual cases, we always recommend specific legal advice that addresses the concerns and conditions of the respective situation. The information provided is correct to the best of our knowledge and belief and is provided without guarantee of correctness, completeness or validity.
Disclaimer
Please note that the texts on this website and the related contributions are provided for general informational purposes only and do not constitute tax or legal advice in the proper sense. For individual cases, we always recommend seeking specific legal advice tailored to the circumstances of the situation. The information is provided to the best of our knowledge and belief, without any guarantee of accuracy, completeness, or validity.
