How should an employer treat its employees

Tips for employers from A-Z

Below you will find answers to typical labor law questions that will be of first aid to you as an employer.

The tips are currently not yet complete. We therefore ask for your understanding.


Termination Agreement


Warning


termination


Breach of duty


Transfer reservation


Reservation of revocation



Why a termination agreement?

ATermination Agreement is concluded between employer and employee if the employment relationship is to be terminated by mutual agreement without notice. The termination agreement must be made in writing. The employer and employee must each receive a copy of the termination agreement with the original signatures.

If a termination has been given, it is regularly checked for effectiveness as part of a dismissal protection process. Result of this process - without a termination agreement:

  • If the termination is effective, the employment relationship ends.

  • If, on the other hand, the termination is ineffective, the employment relationship continues, i.e. the employee returns to his or her place of work, the employer must pay all salary claims for the duration of the process. This can extend over several years.

Advantages of a termination agreement

  • In contrast to the result of a dismissal protection process shown, the termination agreement is arapid form of termination of the employment relationship. So canfurther open points be finally settled between employer and employee. In a dismissal protection process, it is only about the termination issued by the employer.

  • The termination agreement is asAlternative to a risky termination often from the employer's point of viewuseful and economically viableto terminate the employment relationship without the risk of disputes.

  • TheTermination of employment canshort term andwithout consideration of statutory, collective bargaining agreements or individual agreementsNotice periods and dates respectively. However, here it is regularly ensured that the termination agreement observes the notice period so that the employee does not receive a blocking period for unemployment benefits or the severance payment that may have been paid is taken into account.

  • Also find thegeneral and thespecial protection against dismissal z. B. for works council members, severely disabled people, pregnant women and parentsno use.

  • TheWorks council's right to be heard and consent according to §§ 102, 103 BetrVGdoes not apply for the termination agreement.

  • Cancellation agreements requireno objective justification.

Disadvantage of a termination agreement

Since the employee loses his job, he can usually do this through aseverance pay pay.

Expert tip

The termination agreement serves, among other things. avoiding a process. In practice, there are always cases in which the employer allegedly put the employee under pressure when the termination agreement was concluded, with the result that the employee then challenges the termination agreement and sues for continued employment.

Allow the employee time to sign and document this.

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How best?

With a warning, the employer can request an employee to stop behavior that is contrary to the contract. The employer has the right to issue a warning as a means to protect the employeeto point out objective breaches of contract and him the himselfthe legal consequences resulting therefrom. The warning should work towards the future proper fulfillment of the contract. The warned violations can

  • against theEmployment contract and company regulations (e.g. alcohol / drug or smoking ban or other arrangements in a work order)

  • against instructions forWork behavior or against instructions forWork performance (poor work performance, being late, unexcused absenteeism, feigning illness, refusal of work instructions, etc.)

judge. To afault of the employee it does not matter.

It is legally irrelevant whether the employer issues the warning z. B referred to as a reminder, reminder, reprimand or warning. It only has to meet the necessary requirements that jurisprudence places on the effectiveness of such a warning.

Expert tip

It is always advisable to use the designation "warning" and for documentation in text form, even if this is not required by law.

TheJurisprudence puts high on the content of a warningconditions. This results in:

  1. Description of a precisely described fact that is understandable in and of itself:

    1. detailed description of the actual facts that justify the breach of duty,

    2. Information on the day, place (workplace in the company) and, if possible, at what time the breach of duty occurred,

    3. if necessary, naming of the persons who immediately perceived the breach of duty

    4. in the case of faulty work performance information on the work results

    5. possibly the presentation of the consequences, e.g. B. Damage as a result of the breach of duty.

  2. The described behavior of the employee must be marked as a breach of contract and expressly disapproved.

  3. Request to change or abandon the misconduct and compliance with contractual obligations in the future.

  4. Threat of consequences under labor law such as transfer, extraordinary or ordinary (change) termination in the event of recurrence. It should be made unmistakably clear to the employee that the continuation of the employment relationship is endangered in the event of repetition.

Aexample for a warning, see our guide "Reasons for termination in labor law".

Expert tip

If several breaches of duty are reported in a warning letter and only one of them does not apply, the warning must be withdrawn and the warning letter must be completely removed from the personnel file at the employee's request. The warning may also not remain in part.

We therefore recommend that you issue a separate warning for each individual breach of duty.

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When should a warning be issued?

Often a warning is waited too long.

The employer would like to leave the employment relationship unencumbered for as long as possible. This is mostly the "wrong way". Finding the balance between admonishing or cautionary behavior on the part of the employee is admittedly difficult. After a warning, a change in the positive sense can usually be determined. If there is no positive change in behavior, the employee's “farewell” is inevitable in the long run.

It isexpedient, the warning after establishing the factsimmediately toto explainin order to avoid creating the impression that the employer is accepting the wrongdoing.

The right to a warning can, howeverforfeited if a longer time has passed after the breach of duty and there are special circumstances from which the employee could infer that the employer will no longer issue a warning about the incident. According to the case law, warnings are problematic after a period of 9-12 months.

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Typical mistakes

Practice shows that employers often issue warningsfollowing errors commit:

  • Failure to comply with the required written form (for reasons of evidence),

  • Insufficient definition of the content of the warning (information that is too short or too general with regard to the facts on which the warning is based, use of keywords, mere paraphrase, etc.),

  • missing reference to breach of contract

  • no threat of dismissal in the event of recurrence

  • nakednessannouncement "Consequences under labor law"

  • Inclusion of several issues in a warning, which contain various breaches of duty

  • The employee concerned is not given an opportunity to comment, if this is provided for in accordance with the employment contract / collective bargaining regulations

  • failure to secure evidence of the employee's misconduct.

If the warning contains incorrect factual statements or if the facts are not “worthy of warning”, the employee can bring an action before the labor court to remove the warning from the personnel file.

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How often do you have to send reminders?

There is no hard and fast rule as to how often the employer must warn the employee in order for it to be sufficient for an effective dismissal. This is judged according to the specific circumstances in each case. Decisive for this are in particular the type and extent of the breach of duty, the consequences of the misconduct and the previously completed - complaint-free - period of service.

A rule of thumb

The less pronounced the misconduct, the more often a warning must be given before the employer can terminate the employee for another similar breach of duty. The more serious a warned misconduct is, the fewer warnings are necessary before termination. Then a warning can be sufficient to justify a termination in the event of repetition. Under certain circumstances, a warning may even be dispensable.

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Does the reason for the termination have to be stated?

The reason for the termination should initially not be stated in the termination, unless there are statutory or collective bargaining regulations.

The law provides for a written justification for termination in the vocational training relationship and for termination of a pregnant employee after the approval process has been carried out.

background: With the once documented reason for termination, the employer makes a decision.

Expert tip

Often it makes sense to explain the reason only in (court) negotiationsNot but immediately in writingin the termination to document. If there is a works council, the employer must explain the reason in advance as part of the hearing process.

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What is the best way to deliver a notice of termination?

The receipt of the notice of termination is decisive for the preservation of legal positions (e.g. to maintain the notice period, avoid further claims for payment of the salary, etc.). Access to the original is crucial here. A copy, fax or e-mail does not meet the legal requirement of the written form. This also applies if an original is scanned and e.g. transmitted by email.

Since in practice the receipt of the notice of termination has to be proven by the employer, the notice of termination should be handed over personally and the employer should have the receipt confirmed.

If it is not possible to hand it over in person, the declaration of termination must be sent by post. Another transmission of the notice of termination that has proven itself in practice is delivery or dropping it in the mailbox by messenger.

Expert tip

In order to avoid discussions about the content of the letter posted, the messenger, who can be a witness in any process, should read the notice of termination and document the posting in the mailbox in writing or take a photo with the mobile phone.

If this option of delivery by messenger is not available, the declaration of termination should be made by registered mail. Various options are offered by the postal delivery company, whereby the so-called “registered delivery” is received when it is handed over to the recipient by the postman. If the postman doesn't find anyone, a notification slip will be left in the mailbox. Then the delivery takes place only when the registered mail is picked up. In this respect, there may be a time delay. In the case of "registered mail", the letter of termination is thrown into the mailbox by the postman and the time of posting is recorded.

Even if the employer is aware of the employee's vacation, for example, he can send the notice of termination to his home address. As a rule, the employee is not obliged to submit a request for forwarding. Even if he does not return home until weeks later in the event of an actual absence, he has the opportunity to protect his rights, for example to subsequently allow an action for protection against dismissal. Even if the employee is sick, a notice of termination can be sent to him.

If the employee does not want to accept a termination personally, the employer is required to repeat this in front of witnesses and to have the refusal confirmed. Blocking access by the employee has the effect, however, that the employee must allow himself to be treated as if the notice of termination had been served. These cases, which rarely occur in practice, are difficult for the employer to prove, as he has to prove to the employee that he knows about an imminent termination on the one hand and that he is consciously preventing access on the other.

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What can the employer do?

If the employee disregards the main or secondary duties incumbent on him under the employment contract, works agreement, collective agreement or law, the employer has various options to react to the breach of duty contained therein:

  1. admonition
    He can object to the employee's misconduct and remind them of their specific duties. This warning is intended to make it clear to the employee that the employer has recognized his breach of duty and does not tolerate it. The breach of duty complained about must be explained in detail so that the employee can recognize which work, performance or regulatory behavior the employer is complaining about. An announcement with consequences under labor law in the event of repetition is not connected with the admonition.

  2. Warning
    He can also ask the employee to put an end to the specific breach of duty and threaten consequences under labor law in the event of a recurrence.

  3. Transfer
    In the event of a more serious breach of duty, the employer can transfer the employee to another job by virtue of his right of direction. This measure is particularly suitable if the breach of duty was related to the previous job that is now to be changed.

  4. Change notice
    As an alternative to the transfer, the employer can also give the employee concerned a notice of change in the event of a more serious breach of duty. This terminates the employment relationship under the previous conditions and at the same time offers the employee a new employment relationship with changed conditions in order to rule out the specific breach of duty for the future as far as possible.

  5. Ordinary termination
    In the event of a significant breach of duty, the employer has the right to ordinary notice with which the employment relationship is to be terminated.

  6. Extraordinary termination
    A particularly serious case must be present for this. It takes an important reason for the employer. Continuing the employment relationship, waiting for the notice period and issuing a warning are no longer reasonable for the employer.

  7. Cancellation agreement / settlement agreement
    In order to avoid a termination and any subsequent disputes about termination, a termination agreement or, after termination, a winding-up agreement can also be considered.

The employer must take an appropriate measure under labor law. Their selection depends on the severity of the employee's misconduct. In case of doubt, a warning according to the principle of proportionality must be issued before termination.

An effective (ordinary or extraordinary) termination always presupposes that the employee has persistently violated his obligations in the past and the employer has given him a warning in vain. Only then does the negative prognosis required for the termination exist that the employee will probably not behave in accordance with the contract in the future.

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Can a change of area be effectively reserved in the employment contract?

If the employee disregards the main or secondary duties incumbent on him under the employment contract, works agreement, collective agreement or law, the employer has various options to react to the breach of duty contained therein:

  1. admonition
    He can object to the employee's misconduct and remind them of their specific duties. This warning is intended to make it clear to the employee that the employer has recognized his breach of duty and does not tolerate it. The breach of duty complained about must be explained in detail so that the employee can recognize which work, performance or regulatory behavior the employer is complaining about.An announcement with consequences under labor law in the event of repetition is not connected with the admonition.

  2. Warning
    He can also ask the employee to put an end to the specific breach of duty and threaten consequences under labor law in the event of a recurrence.

  3. Transfer
    In the event of a more serious breach of duty, the employer can transfer the employee to another job by virtue of his right of direction. This measure is particularly suitable if the breach of duty was related to the previous job that is now to be changed.

  4. Change notice
    As an alternative to the transfer, the employer can also give the employee concerned a notice of change in the event of a more serious breach of duty. This terminates the employment relationship under the previous conditions and at the same time offers the employee a new employment relationship with changed conditions in order to rule out the specific breach of duty for the future as far as possible.

  5. Ordinary termination
    In the event of a significant breach of duty, the employer has the right to ordinary notice with which the employment relationship is to be terminated.

  6. Extraordinary termination
    A particularly serious case must be present for this. It takes an important reason for the employer. Continuing the employment relationship, waiting for the notice period and issuing a warning are no longer reasonable for the employer.

  7. Cancellation agreement / settlement agreement
    In order to avoid a termination and any subsequent disputes about termination, a termination agreement or, after termination, a winding-up agreement can also be considered.

The employer must take an appropriate measure under labor law. Their selection depends on the severity of the employee's misconduct. In case of doubt, a warning according to the principle of proportionality must be issued before termination.

An effective (ordinary or extraordinary) termination always presupposes that the employee has persistently violated his obligations in the past and the employer has given him a warning in vain. Only then does the negative prognosis required for the termination exist that the employee will probably not behave in accordance with the contract in the future.

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What has to be considered?

What must the employer pay attention to if he wants to exercise a contractually agreed right of revocation?

The employment contract must (1) contain an effective right of revocation for the specific case. Then the employer can declare the revocation for the specific special service on the basis of the revocation reservation to the employee concerned (2).

In addition, the employer must justify the revocation (3). The reason for the revocation must coincide with the contractual regulation and also demonstrably exist.

The employee can have both the effectiveness of the reservation of revocation and the exercised revocation checked by the labor court. If the revocation is arbitrary and has not been exercised at the employer's reasonable discretion, such a revocation would be inadmissible and the employee would still have the right to be eliminated by the revocation.

Expert tip

The employer should make sure that

  • the right of revocation is already carefully formulated in the employment contract,

  • the revocation is specifically related to factual reasons and

  • a reasonable notice period is included for the revocation, to which the employee can then adjust in good time for the withdrawal of the special benefit.

All employees affected with regard to the service to be revoked should be treated equally. Otherwise, an employee who has been treated unequally can assert a claim to equal treatment and thus to the granting of the special benefit withdrawn by revocation.

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