To enable employers and employees to plan better, the legislator has introduced statutory notice periods.
This means that there is a certain period of time between the submission of the notice of termination and the final end of the employment contract.
During this time, the employee can look for a new job and the employer can look for a new employee.
Provided the employee has not been dismissed without notice as an exception, Section 626 BGB, which is only permissible under very specific conditions.
We would like to briefly summarize the most important questions about notice periods in this article.
Notice periods are regulated by the employment contract, the collective agreement or by law
The notice periods are primarily determined by the employment contract or collective agreements.
In the event that no notice periods are stipulated by contract or collective agreement, the statutory provisions of Section 622 para.
1 BGB.
These regulations also apply if the contractual notice periods deviate from the lower limit of the statutory regulations.
If the employment contract does not expressly state that the contractual deadlines also apply to the employee, the shorter statutory deadlines always apply to the employee.
Notice periods only apply to ordinary terminations
The notice periods do not apply to every type of termination.
In principle, they only apply to ordinary dismissals.
This can be given, for example, if the employer reduces jobs (dismissal for operational reasons), the employee repeatedly fails to show up for work on time (dismissal for conduct-related reasons) or is no longer able to perform their work due to ill health (dismissal for personal reasons).
In the event of particularly serious misconduct, an employee can also be dismissed without notice.
In this case, the notice periods generally do not apply; this is also referred to as termination without notice.
Incidentally, employees can also resign without notice if the employer commits a serious breach of contract, e.g. in the event of insults or bullying against the employee.
In practice, however, termination without notice by employees is rare.
In exceptional cases, notice periods may also apply to extraordinary terminations.
Some collective agreements stipulate that employees over a certain age or length of service can only be dismissed under very strict conditions.
The employer then needs a particularly important reason for dismissal.
This is referred to as employees who cannot be dismissed.
The TVöD in particular provides for such special protection against dismissal.
If an employee can no longer be dismissed with due notice, it may be possible to give extraordinary notice with a notice period.
Notice period of at least 4 weeks
If the statutory notice periods apply, the notice period depends on the duration of the employment relationship.
The shortest notice period for termination is then 4 weeks to the end of the month or to the 15th of the month.
This is regulated by § 622 para.
1 BGB.
The date of receipt of the notice of termination is always decisive.
If there are at least four weeks between receipt and the 15th of the following month, the notice of termination takes effect on the 15th. Otherwise, it only takes effect at the end of the following month.
The longer the employment relationship lasts, the longer the notice period.
The notice period depends on the length of service:
- one month for employment relationships of at least two years
- two months for at least five years
- three months if at least eight years old
- four months if at least ten years old
- five months if at least 12 years old
- six months if at least 15 years old
- seven months if at least 20 years old
Section 622 para.
2 sentence 2 of the German Civil Code (BGB) still mentions that the period before the age of 25 is not taken into account when calculating the duration of employment.
However, case law now agrees that this is inadmissible because it constitutes unequal treatment on the grounds of age.
(See: ECJ ruling of 19.01.2010 – C-555/07).
Since then, the duration of the employment relationship is independent of the employee’s age and Section 622 para.
2 sentence 2 BGB should simply be ignored.
Shorter notice period than the statutory notice period only permitted by collective agreement
In principle, the employer may deviate upwards from the notice period.
They may therefore increase the notice periods in individual contracts, but not reduce them.
However, there is no upper limit for the contractual notice period.
However, collective agreements can also stipulate a shorter notice period than the statutory notice period.
If the employment contract is subject to a collectively agreed provision, the notice periods may well be shorter.
It is important to note that shorter notice periods than the statutory period of 4 weeks are also possible.
In flexible sectors, such as temporary work, notice periods of just 2 days are certainly possible.
§ Section 622 para.
4 sentence 1 BGB gives the collective bargaining partners the authority to agree deviating regulations.
The standard also does not stipulate any minimum notice periods fixed by collective agreements, which is why one-day notice periods are also possible.
It should also be noted that the notice period for the employer may not be shorter than the notice period for the employee.
An exception applies to employees who have only been hired as temporary staff for a maximum period of 3 months.
Another exception applies to small companies.
If the employer has no more than 20 full-time employees – excluding apprentices, trainees or employees undergoing retraining – the notice period can be reduced.
But not less than the minimum period of 4 weeks.
Different notice periods for freelancers
The notice periods shown apply in principle only to employees, i.e. employees who work for the employer on the basis of an employment contract.
There are also employees who work for an employer but are not employees, e.g. freelancers.
Different notice periods apply to them.
Unless otherwise agreed between the parties, the notice period depends on the period for which the remuneration is paid (Section 621 BGB):
- If the employee is paid by the day, the notice period is only one day.
This means that the employee only has to show up for work on the following day.
Even if the notice of termination reaches him on a Sunday or public holiday. - If the employee is paid per week, the period of one week also applies.
- If the employee is paid per month, the day of resignation is the last day of the month.
But only if the freelancer has been given notice of termination by the 15th of the month. - If the employee is paid per quarter, the employee can be terminated at the end of the quarter with a notice period of 6 weeks.
- If the employee is not paid by time periods, but for the completion of a specific project, for example, he or she can be terminated at any time.
Two weeks’ notice during the probationary period
If an employee is in the probationary period, they can be dismissed with two weeks’ notice (Section 622 (3) BGB).
However, this special provision only applies if the probationary period is no longer than six months.
In contrast to termination in accordance with Section 622 Para.
1 BGB, no special deadline must be observed for termination during the probationary period.
Notice period runs from receipt of the notice of termination
The notice period begins to run as soon as the employee or employer receives the notice of termination.
The relevant day for receipt is the day on which the terminated party became aware of the termination, or at least had sufficient opportunity to do so.
To be on the safe side, a notice of termination should be handed over in person if possible.
If this is not possible or too time-consuming, it can also be sent by letter.
In this case, however, it should either be placed in the letterbox in person or sent by registered mail.
If the notice of termination is sent by post, it should be noted that it will only be received when the recipient can be expected to regularly empty their letterbox.
There are no clear rules on this in case law and the ruling may differ depending on the region.
If the letter is not put in the letterbox until the afternoon, it may be that the notice is not deemed to have been delivered until the following day, depending on the judge.
Keep your eyes open in practice
The length of the notice period can therefore usually be determined by looking at the law, contract or collective agreement.
Mistakes are often made in the subsequent calculation of the period – i.e. when the period begins and when it ends.
It always depends on the exact day.
If the notice period is missed by an hour, i.e. the notice is not delivered until 1:00 a.m. the following day, the deadline is automatically extended.
This is particularly annoying if the termination is only possible with effect from the end of the next quarter.
A deadline calculator can often be helpful as a rough guide for the actual calculation.
However, if you have any further questions, you should discuss them with a lawyer.