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Anyone who has just been hired and receives immediate notice of termination can, under certain conditions, receive severance pay or even save their job through a dismissal protection lawsuit.
Anyone who is terminated during the probationary period generally does not enjoy any protection against dismissal.
A severance payment is possible if the termination was ineffective, confirms lawyer Christian Lange from Hanover. Attorney Lange explains how an invalid termination can be recognized despite termination during the probationary period.
The employer wants to protect himself with a probationary period agreed in the employment contract. If the employee’s performance does not meet the employer’s expectations, termination can be given without observing the Dismissal Protection Act.
The probationary period must always be stated in the employment contract
“According to Section 622 Paragraph 3 of the German Civil Code (BGB), such a probationary period may not last longer than six months,” explains lawyer Christian Lange.
“The probationary period must always be agreed in advance in the employment contract. If the employment contract does not provide for a probationary period, this does not exist,” says Lange.
So can an employer always terminate the contract during the probationary period without giving reasons? First of all, employers and employees can use the shortened notice period of two weeks in accordance with Section 622 Paragraph 3 of the German Civil Code (BGB), says Lange.
“However, termination does not always have to be legally effective, even during the probationary period.”
Then termination within the probationary period is invalid
The boss does not initially have to give the person being terminated any reasons as to why he is resigning during the probationary period. The Dismissal Protection Act often does not apply during the probationary period.
However, the termination may be vulnerable for other reasons. It must be checked whether the termination took place after the probationary period had expired.
It may be that the Dismissal Protection Act applies during the probationary period. This is the case if:
1. A lawyer checks whether there has been a violation of the General Equal Treatment Act
2. the employee is pregnant, is on maternity or parental leave and the Dismissal Protection Act applies.
3. If there is an incorrect signature because the termination was not made in writing with the original signature, the termination is also ineffective. The signatures must also be originals. Initials or abbreviations are not enough.
4. If the works council has not been consulted, the termination must also be contested during the probationary period, according to the lawyer.
5. If no probationary period is agreed upon in the employment contract, the probationary period is also ineffective.
The termination should always be checked
The lawyer should check the employment contract
It is therefore always worth checking the termination letter carefully and checking for formal errors. Even those who enjoy special protection against dismissal for the reasons mentioned should not simply accept termination.
Reinstatement can be enforced through a dismissal protection lawsuit. If the termination is not legal, the lawyer can, for example, demand severance pay.
Many dismissals violate the Dismissal Protection Act. It is therefore advisable to quickly submit a claim for protection against dismissal to the relevant labor court.
Pay attention to short deadlines
Anyone who does not assert a claim for protection against dismissal within three weeks of termination can only sue retroactively despite incorrect termination in special cases.
Either reinstatement can be achieved or a severance payment can be agreed. “In most cases, a severance payment is agreed upon during a preliminary negotiation,” says the lawyer.
The other side can also assess the risk of a lawsuit very precisely. However, if you file a lawsuit, you should consult an employment law attorney. Only he knows the employers’ tricks and can find the error in the termination.
A lawsuit must be well prepared in terms of content in order to significantly increase the chances of a settlement.
Many people who have been laid off believe that they cannot do anything against their former employer. The opposite is the case. Labor law protects employees and protection against dismissal is very comprehensive in Germany.
Since the Dismissal Protection Act is strongly focused on the rights of employees, many employers are actually afraid of dismissals.
Always check the termination agreements
For this reason, termination agreements are often presented to those affected. However, such a termination agreement should not be signed lightly. The prospect of a high severance payment is usually significantly higher in the context of a claim for protection against dismissal.
Sick during probation
If the employee falls ill during the probationary period, he or she will receive his or her normal salary. However, the employment relationship must have existed for at least four weeks. If this is not the case, the health insurance company steps in and pays sick pay. Here too, it must be checked whether termination in the event of illness is legal.
Carolin-Jana Klose has been an author at Gegen-Hartz.de since 2023. Carolin studied education and works full-time in health prevention. Her expertise lies in social law, health prevention and socio-political issues. She is involved in unemployment counseling and is politically committed to helping those affected by poverty.
2024-01-07 09:37:56
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