The most important things at a glance:
- In the case of termination by the employee, it is referred to as resignation.
- The statutory notice period for resignation is 4 weeks to the 15th or the end of the month.
- For extraordinary termination, fixed-term employment relationships, and probationary periods, different notice periods apply.
- When resigning yourself, you should definitely take the waiting period into account.
Employees often wish to change jobs. The reasons for this can naturally be diverse. This then raises the question of which regulations must be observed when an employee resigns. This will be explained in more detail below.
Self-termination
First, let's get the terminology right: when an employee terminates their employment, it's called a resignation. This is the counterpart to Employer termination This is a dismissal initiated by the employer. Unlike an employer's dismissal, there is no employment protection with a resignation, as the desire to resign comes from the employee themselves.
First
The statutory notice period for termination by the employee is governed by Section 622 (1) of the German Civil Code (BGB). According to this, the employee can terminate their employment with a notice period of 4 weeks to the 15th or the end of a month. It should be noted that 4 weeks are not equivalent to one month.
Example for clarification:
If an employee wants to resign in January of a year, with the termination effective on the 15th of the following month, the resignation must be received by the employer no later than January 18th.
Explanation: The month of January has 31 days. If the termination notice is received on January 18th, there are still 13 days remaining until the end of January. There are an additional 15 days until February 15th. This adds up to exactly 28 days (= 4 weeks). Had the employee in question given notice on January 19th, the termination would have been effective at the end of the following month, i.e., February 28th. It should be noted that the termination must also be received. These are normal office hours. Simply dropping it in the mailbox may not be sufficient if regular collection could no longer be expected.
Deviations from this deadline exist if the employment contract, collective agreement, or works agreement specifies something different. Therefore, employees should inform themselves about these circumstances early on.
Form
The termination must be in writing. This means that the notice of termination must be made on paper and signed by the employee by hand.
Important: Cancellations via SMS, MMS, WhatsApp, email, or fax are not possible!
Contents of the termination
The following points should always be included in the termination letter:
- Names and addresses of the contracting parties, i.e., employee and employer
- Clear statement that the employment relationship is to be terminated. Preferably also include in the subject line.
- Date on which the employment relationship is to be terminated.
- Please provide written confirmation of receipt of the termination.
- Tip: The employer can also be asked to issue a letter of reference.
Access to termination
What many employees don't know: The termination only becomes effective upon its receipt by the employer. This means that the receipt of the termination is also for the Calculation of the notice period The decisive factor is. Access, in a legal sense, means that the termination must have entered the employer's sphere of influence. This means that the termination must have been placed in the employer's mailbox, handed over to their secretary in the office, or presented to a personnel manager. Merely dropping it in the mailbox may not be sufficient if the normal emptying of the mailbox could no longer be expected.
To ensure nothing goes wrong when submitting your resignation, it is advisable to deliver it in person to your employer (provided this is feasible given the size of the company).
Tip: Have your termination letter confirmed
Since the party giving notice bears the burden of proof regarding the receipt of the notice, and disputes repeatedly arise in practice regarding this, it is advisable to have the employer acknowledge receipt of the notice in writing.
Specifics of fixed-term employment contracts
When it comes to fixed-term employment contracts, there are some special considerations. A fixed-term employment contract is designed from the outset to end at a specific, predetermined point in time. For this reason, it cannot simply be terminated during the fixed-term employment without further ado. The basic rule, rather, is that the employment relationship continues until the specified time.
Therefore, a fixed-term employment contract can only be terminated prematurely in a few exceptional cases. This is the case if a termination option has been explicitly agreed upon in the fixed-term contract itself. Finally, premature termination is possible as extraordinary termination. For this to be possible, there must be an important reason that makes it unbearable for both parties to continue the employment relationship until the intended date.
Termination during the probationary period
There are special regulations for termination by the employee during the probationary period. In this case, the employment relationship can be terminated with a notice period of 2 weeks. This is regulated by § 622 III BGB. However, this probationary period must be expressly agreed upon in the employment contract. Deviating regulations may also have been made in the employment contract or a collective bargaining agreement. In that case, the notice period stipulated there is decisive.
Extraordinary termination
The special feature of extraordinary termination by the employee is that the ordinary notice periods do not need to be observed. The employment relationship is therefore terminated immediately. For an extraordinary termination by the employee, it is necessary that a so-called important reason exists.
Examples of important reasons that entitle an employee to extraordinary termination (always provided that this requires prior warning from the employee) include:
- Offenses by the employer
- Bossing and bullying
- Sexual harassment in the workplace
- Endangerment of the employee's important legal interests (life and health)
- Non-payment of owed wages by the employer/repeated late payment
- The employer disregards the Working Time Act
- The employer does not comply with occupational safety regulations
Important: The termination must occur within 2 weeks of becoming aware of the important reason. The background of this rule is that it is assumed that the reason can no longer be considered „important“ after this 2-week period has passed.
Severance pay upon resignation
When terminating your own employment, there is no legal entitlement to severance pay. Since the termination is initiated by the employee in this case, severance pay is also significantly more difficult to negotiate. Furthermore, severance pay in the event of a voluntary termination would not be socially insured privileged. It should be warned against agreeing to severance pay in exchange for voluntarily terminating employment. Waiting periods and blocking periods imposed by the employment agency threaten.
Loss of unemployment benefits due to voluntary resignation
It is important to note that an employee's resignation generally leads to a 12-week waiting period for unemployment benefits. This is because, by resigning, the employee terminates the employment relationship themselves and therefore causes the reason for their job loss.
Therefore, if no new job is in prospect, this circumstance must be taken into account. While there are also exceptions to the blocking period, these can by no means be generalized and must be considered on a case-by-case basis.
An example of such an exception would be dismissals due to health risks. However, medical evidence is always required in such cases.
Termination agreement instead of notice
A termination agreement in lieu of termination can offer advantages for the employee.
A severance payment can be agreed upon in the termination agreement. In addition, it is possible to determine the issuance of a reference letter and its content. However, since a termination agreement can lead to a waiting period for unemployment benefits, it should not be signed without prior consultation with a Certified Specialist in Labor Law success.