Termination without notice without any reason – with a bit of luck it will still be effective

With a current decision (decision of January 12, 2021, Ref.: 2 AZN 724/20), the BAG has dealt with the problem of adding reasons for termination. The BAG confirmed the previous legal principles and made some very interesting comments on the general nature of a notice of termination.

facts

The underlying legal dispute concerned the extraordinary dismissal without notice of a chief physician. The reason for termination was actually an assault against an employee. However, in the course of the procedure, the employer added further reasons for termination of which he was not aware when the termination was given. Before the BAG, the plaintiff argued, among other things, that this was not permissible.

The BAG clearly rejected this argument.

“Additional” reasons for termination

The issue of “adding” reasons for dismissal is a standard problem in dismissal protection processes. It is recognized that reasons for termination that arose before the termination was announced and which were not known to the person terminating for more than two weeks when the termination was announced can be added at any time under substantive law (e.g. BAG, judgment of September 6, 2007, in: NZA 2008, 636). The time restriction regarding knowledge of the reasons for termination follows from the two-week period of Section 626 Paragraph 2 BGB.

The BAG once again confirmed the fact that this is possible with practically no restrictions in the current decision of January 12, 2021. The BAG states that, as a theoretical limit, in extreme cases the termination could take on a completely different “character” by “changing” the reasons. However, this barrier is immediately rejected again. This is a “mistaken idea”. As a neutral right to exercise in itself, the termination has no other “character” than that it is intended to terminate the employment relationship. The reasons for the termination are not an integral part of it.

Statement of reasons and motive not decisive

So it's not just the opinion that is still sometimes found that a reason must be stated in the letter of termination that is wrong. It is not even necessary that the termination is later actually justified with the reason that was originally its motive. If a better reason is found at a later date that was not yet known at the time of termination, the termination can also be justified on this basis.

The BAG goes even further. It believes that the legal system does not fundamentally even disapprove of a termination being “initially declared blankly, so to speak, without any even remotely viable reason.” In principle, an employer is allowed to declare a termination without any reason and hope that the employee will not file a lawsuit for protection against dismissal, or even hope that he will be able to reach a severance payment settlement in court. Ultimately, it is also easily possible for the employer to find an important reason for the extraordinary termination in good time during the course of the legal dispute, which objectively already existed at the time it was received but was not known to him. As long as this reason for termination is not immoral, disciplinary or discriminatory, the termination can then be based on this new reason.

In other words: An extraordinary termination without notice without any reason is only ineffective if no sufficient reason for termination within the meaning of Section 626 Paragraph 1 of the German Civil Code (BGB) can be found later.

Hearing of the works council

For the sake of completeness, it should of course be pointed out that there may be barriers to adding reasons for termination based on collective law principles. Added reasons for termination that arose before the termination was given and were known to the employer, but about which he did not inform the works council, cannot be used in the process. In the case of reasons for termination that were not known to the employer when the termination was announced, the works council must first be heard before the reasons can then be added in the dismissal protection process. If the employer fails to hold such a subsequent works council hearing, the reasons cannot be used in the process.

Conclusion:

If the dismissal protection process shows that a reason for dismissal that was originally assessed as promising will ultimately not be successful because, for example, the court accepts a warning requirement, the two-week deadline of Section 626 Paragraph 2 of the German Civil Code (BGB) was missed or the works council hearing was not carried out properly, it is worth doing some research according to any other reasons for termination that are already objectively present in the newspaper in which the termination was announced. If these are still found, the process can take an unexpected (positive) turn.

Henning Schultze, lawyer and specialist in labor law