Termination during “short-time” in Germany – What are your rights?
A termination during a “short-time allowance” is generally possible in Germany. There are plenty of blogs on the internet telling you otherwise. They are wrong. Provided that there are (new operational, personal or behavioral) reasons for dismissal, a termination can very well be legal, even if your are receiving short-time work compensation. Terminations for personal or behavioral reasons are possible at any time, regardless of whether you are on short-time or not. Operational layoffs, on the other hand, are subject to further, stricter requirements. The employer must adequately justify and explain the loss of the job for both external and internal reasons.
Can you be dismissed for operational reasons during short-time work?
There is a widespread misconception that you enjoy protection against dismissal during short-time work. Employees can be terminated by the employer during short-time work. Operational layoffs, but also personal or conduct-related layoffs are possible:
- Personal and behavior-related terminations are possible at any time
- Operational layoffs, on the other hand, are subject to further conditions.
The reason for this is that short-time work may only be ordered in the event of a temporary loss of work. Operational layoffs are legal in the event of a permanent loss of work. Hence, termination for operational reasons is possible during short-time work, when a temporary loss of work becomes permanent. It is, however, more difficult to argue in court. We believe that many redundancies during short-time work will be ruled to be ineffective by the labor courts.
Why are redundancies during short-time work often ineffective?
The employer must adequately justify and explain the loss of the job for both external and internal reasons. According to case law, the short-time work that has already been ordered is an indication of a temporary reduction in the need for employment. However, redundancies for operational reasons are only legal in the event of a permanent loss of work. If the employer wishes to terminate the employment relationship during short-time work due to external circumstances, he must prove that his original forecast for short-time work did not come true. The employer must prove new circumstances that now speak for a permanent loss of jobs. That’s not that easy. If the termination for operational reasons during short-time work is justified with the same reasons for which short-time work was ordered, it is ineffective. Even if you want to accept the termination, this also affects the amount of the severance payment.
Burden of proof in the event of termination during short-time work
However, it is possible for the employer to prove that the requirements for a termination for operational reasons were met, despite the higher burden of proof and explanation. However, this can be the case, for example, if additional orders break away and it is not possible for the employee to continue working. Another reason could be the closure of entire areas of the company or a relocation of operational activities to another location. Such a reason also exists if the employer assigns departments or orders to external companies. But it depends on the exact circumstances of the individual case.
What should you do if you are dismissed during short-time work?
If you have been dismissed during short-time work, it is important that you act quickly: You may have to file an action for protection against unfair dismissal with the labor court within three weeks. You should carefully examine any offer from your employer and seek advice from an employment lawyer. A first opportunity to check your claims can be found here:
* A note about our wording. We do not always “gender” – E.g. when we are talking about employees. But we are trying to keep things simple. German labor law is complex enough. For the sake of clarity and legibility in our texts, we have therefore decided to omit most gender formulations.