The most important things at a glance:
- In the case of termination due to the employee's personal circumstances, the reason for termination lies within the employee's person.
- Before a termination for reasons related to the employee can be issued, the employer must examine all possibilities of continued employment.
- A lawsuit for protection against dismissal is possible against a dismissal for personal reasons. However, the 3-week period from the delivery of the dismissal must absolutely be observed.
Note: The term „employee“ below includes all genders (m/f/d) and is used for improved readability..
What is a termination for personal reasons?
In the case of termination for reasons related to the person, the grounds for termination lie within the employee's person. In contrast to termination for conduct, the employee has done nothing wrong here; instead, the termination is based on characteristics or abilities inherent in the employee's person. The most frequent example in practice is absence due to illness.
More on the case of Termination due to illness.
Typical of termination due to personal circumstances is that the employee cannot change these characteristics.
Furthermore, dismissals based on personal attributes require that these attributes, which are relied upon, are the reason why the contractual relationship can no longer be fulfilled according to its purpose. Fault on the part of the employee is not relevant in this regard.
Examples of individual-based terminations:
- Long-term illness
- Loss/Revocation of work permit
- Loss/Revocation of driver's license (especially for professional drivers, in the taxi industry, bus drivers)
- Drug/Alcohol Addiction
- Missing language skills
- Loss/revocation of professional practice license (e.g., medical license)
- Inability to work due to imprisonment
- Lack of personal or professional suitability
A termination based on personal reasons is permissible when.
For terminations due to personal reasons, the Protection Against Dismissal Act applies, which links three conditions to the validity of the termination, which will be explained in more detail below.
Prerequisites for dismissal due to personal reasons
In order for the termination not to be socially unfair within the meaning of the Protection Against Dismissal Act, the following conditions must be met:
Negative prognosis
Within the scope of a so-called negative prognosis, it must be determined that the employee is no longer capable of fulfilling their contractual obligations in the future. From this premise, it can be recognized that a termination for personal reasons is precisely not a punishment: Rather, the reasons inherent in the employee represent a burden for the employer, as the work performance can no longer be rendered by the employee as owed.
Impairment of the employer's economic interests
Furthermore, the employer's economic interests (disruption of business operations) must exist. This means that the employee's absence from work leads to unreasonable burdens for the employer. Therefore, the employer's business interests must be significantly impacted in the specific case. This can be the case, for example, if production failures occur.
Operational disruptions can also be assumed in the form of increased continuation of payment of wages.
Impossibility of continued employment
Since a termination due to personal reasons is a harsh measure – considering that the employee is often not at fault for the reason lying in their person – high demands are placed on the termination. The termination is therefore the so-called ultima ratio, meaning the last resort. The employer must therefore examine and exhaust all possibilities for continued employment before terminating. If another vacant position exists within the company where the employee can continue to be employed, this represents a milder measure and is to be preferred over termination.
Under certain circumstances, a change of employment contract may need to be considered if the employee's reassignment is not possible within the scope of the employer's direction. This applies to situations where the employee is first terminated, and then a new employment contract is offered with new terms and conditions that the employee can meet. This applies both in the case of potential continued employment and in the case of Amended termination is therefore an inadmissible termination due to personal reasons.
Balancing of interests
Finally, a so-called balancing of interests must be carried out. In this process, the protected interests of the employee are weighed against those of the employer. If the employee's protected interests outweigh those of the employer, termination is also not permissible.
The following factors are taken into particular consideration on the employee's side in the balancing of interests:
- The duration of the employee's tenure
- The employee's age
- Employee's maintenance obligations
- The previous course of the employment relationship (uninterrupted or not)
- The employee's economic situation
For the employer to consider:
- Operational and economic burden
It should be noted in the balancing of interests that this depends solely on the assessment at the time the termination is received by the employee. Therefore, circumstances that may arise later are not relevant.
Options against dismissal based on personal reasons
As a legal remedy against termination for personal reasons, the Unfair dismissal lawsuit possible. However, it should be noted that the action for protection against dismissal must be filed within 3 weeks of receipt of the dismissal. Compliance with this deadline is of great importance. In the course of the dismissal protection proceedings, the court will then determine whether the dismissal was socially unjustified and therefore ineffective.
Employee Representative Council Assistance with Termination for Personal Reasons
Before an employer can terminate employment for personal reasons, they must consult with the works council. This is stipulated in Section 102 of the Works Constitution Act (BetrVG). The works council then has one week to object to the employee's termination. If the works council does not comment on the termination, their consent is considered granted.
It should be noted here that the employer can also issue the termination in the event of an objection by the works council. It is therefore only necessary for the employer to properly consult the works council.
However, in the event of an objection by the works council, the employee is entitled to continued employment as long as they file a lawsuit for protection against dismissal following the works council's objection. The right to continued employment means that the employee will continue to be employed under unchanged conditions until the conclusion of the dismissal protection proceedings.
Conclusion: Conduct in case of termination due to personal reasons
In the context of termination for personal reasons, a number of regulations must be observed. These are frequently modified and supplemented by new court rulings. This makes it increasingly difficult to gain an overview of the validity of personal terminations. If you are affected by a personal termination, it is strongly recommended to seek legal advice from a Certified Specialist in Labor Law to obtain someone who is familiar with current developments and has many years of process experience.
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