Who Enjoys Special Protections Against Dismissal in Germany?

German labor law is known beyond its borders for its far-reaching protection against dismissals. It may be common knowledge that if an employee has been employed for more than six months and there are over 10 employees regularly employed in the employer’s business, any dismissal requires a justifiable reason for dismissal. Many employers—especially foreign employers—are not aware, however, that no ordinary dismissal is possible at all (even if only temporarily) for certain groups of employees or that such dismissal is permitted only under certain conditions, e.g., with the approval of certain authorities.

What special protections against dismissal are there in Germany?

German law provides for a variety of special protections against dismissal. The most relevant for employers in practice relate to the following groups of employees:

  • Members of an employee representative body enjoy special protection against dismissal for varying periods of time. This includes members of the works council and trainee representatives as well as their deputies under further conditions. In addition, members of the election committee, election candidates and (limited in time and number) employees who invite employees to a works or election meeting in accordance with Section 15 of the Protection Against Dismissal Act (“KSchG”) are protected against ordinary dismissals. The same applies to representatives of severely disabled employees (Section 179 para. 3 sentence 1 SGB IX). However, German labor law does not provide for special protection against dismissal for members of the supervisory board.
  • Severely disabled persons (and those with equivalent status) also enjoy special protection against dismissal in accordance with Section 168 SGB IX.
  • Pregnant employees enjoy special protection against dismissal. Affected employees can also notify the employer of their pregnancy up to two weeks after receiving notice of termination. Employees on maternity leave also enjoy special protection against dismissal until at least four months after giving birth.
  • Protection against dismissal during parental or carer's leave is granted in accordance with Section 18 of the Federal Parental Allowance and Parental Leave Act (“BEEG”) and in the case of (family) carer's leave in accordance with Section 5 the Caregiving Leave Act (“PflegeZG”), as a rule from the time the application for leave is submitted.
  • In the context of reorganizations, employers should also take into account any protection against dismissal under collective agreements: Many collective agreements provide for special protection against dismissal for employees over a certain age and/or a certain length of service. Collective agreements or works agreements may also contain clauses that exclude the ordinary (operational) dismissal of employees for a certain period of time at a certain location.

What rather unknown special protection against dismissal does German law provide for?

The following special protection against dismissal is rather unknown, however relevant in practice:

  • According to Section 22 para. 2 sentence 1 of the Vocational Training Act (“BBiG”), trainees can only be dismissed after the end of the probationary period for good cause. According to established case law, this is only the case if the training objective is significantly impaired and the continuation of the training relationship is unreasonable. As a rule, this can only be assumed in the event of serious breaches of trust, e.g., theft or fraud.

Another rather unknown special protection against dismissal finding is the special protection against dismissal for certain company representatives:

  • The data protection officer appointed on the basis of a legal obligation enjoys special protection against dismissal in accordance with Section 6 para. 4 sentence 2, Section 38 para. 2 of the Federal Data Protection Act (“BDSG”). This means that the employer can only terminate the employment relationship without notice if there is good cause. According to Section 6 para. 4 sentence 3 BDSG, this special protection against dismissal continues to apply for one year after end of the data protection officer’s term. As the Federal Labor Court (“BAG”) recently confirmed, this special protection against dismissal also applies during the probationary and waiting period pursuant to Section 1 para. 1 KSchG (i.e., from the beginning of the employment relationship).

In some cases, employees who hold a political mandate or are involved in certain honorary positions are also subject to special protection against dismissal. For example, Section 2 para. 3 AbgG (Members of the Bundestag Act) prohibits the ordinary termination of the employment of members and candidates of the Bundestag. The special protection against dismissal begins with the nomination of the candidate by the responsible party committee or with the submission of the election proposal and continues for one year after the end of the mandate. Termination for good cause remains permissible. The same applies to members of the European Parliament (Section 3 para. 3 EuAbgG). In some cases, state law also provides for special protection against dismissal for members of the state and district parliaments or at municipal level.

Special protection against dismissal may also result from the employment contract.

The right to terminate the employment relationship can also be restricted by contractual agreement. For instance, the exclusion of ordinary termination by the employer in the employment contract is effective. In practice, corresponding provisions are often found in employment contracts with compliance officers, who would otherwise not enjoy any special protection against dismissal. Such agreements are often part of negotiations, as otherwise it is often not likely for employers to recruit sufficiently qualified persons for this special task. However, an agreement in the employment contract according to which the dismissal is dependent on the consent of the works council is invalid.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.