Protection against dismissal for foreigners
Everything about protection against dismissal for foreigners in Germany: requirements, prospects of success, steps after dismissal.
Here you learn ...
when you are protected from dismissal as a foreigner
what you can do against an unlawful dismissal
What you have to do as a foreigner after being dismissed
Table of Content
1. Protection against dismissal in Germany
2. Requirements for protection against dismissal
3. Necessary steps after termination (foreigners)
4. Conclusion
1. Protection against dismissal in Germany
Protection against dismissal in Germany is a central element of German labor law and protects employees from arbitrary dismissals by their employer. In cases where the so-called Dismissal Protection Act (KSchG) applies, dismissal based on "performance reasons" or other flimsy justifications is not possible. In this article, you'll learn everything you need to know about when a dismissal is legal, how to defend yourself against a dismissal, and what you, as a foreigner, must do after being dismissed.
To be successful in unfair dismissal proceedings against your employer, the German Dismissal Protection Act must be applicable . The prospects of success in unfair dismissal proceedings exist if the following requirements are met:
Scope: Your company employs more than 10 employees (Section 23 KSchG).
Waiting period passed: You have worked for more than 6 months in the company or business (Section 1 Paragraph 1 KSchG).
Filing a lawsuit in a timely manner: You received the notice of termination less than three weeks ago (Section 4 of the KSchG). If these requirements are met, it is worth contacting an employment law attorney to check the legality of the termination.
If the termination is unlawful, you often don't even have to file a lawsuit to receive severance pay. Therefore, most employers are quite willing to negotiate if the requirements of the Dismissal Protection Act are met and they are contacted by a lawyer.
2. Requirements for protection against dismissal
Within the scope of protection against dismissal, it must then be examined whether the dismissal is lawful . A dismissal is generally only lawful if it complies with the legally required written form . According to Section 623 of the German Civil Code (BGB), every termination of an employment relationship must be in writing and signed personally by the employer or an authorized representative. Termination by email, fax, WhatsApp, or SMS is therefore invalid and has no legal effect. Verbal terminations are also legally inadmissible. Compliance with the written form is mandatory for the termination to be effective.
The Dismissal Protection Act also requires that there be a reason for dismissal (so-called “ social justification ”). The vast majority of dismissals are based on “operational” reasons. However, a dismissal for operational reasons is only legal under certain conditions. It presupposes that there are urgent operational requirements that make continued employment of the employee impossible. Reasons for this can include, for example, a decline in orders, restructuring, or plant closures. The employer must, however, provide full evidence of this, e.g., by disclosing its internal structures. Often, however, the operational reasons are merely a pretext , and in reality the dismissal is due to performance reasons or because the employee has simply become undesirable. Neither of these are recognized grounds for dismissal, and a corresponding dismissal is invalid!
3. Necessary steps after termination (foreigners)
Anyone who meets the requirements for protection against dismissal should contact an experienced employment lawyer immediately in the event of dismissal. Dismissal is often legally contestable, and there is a good chance of receiving severance pay or continued employment.
Apart from the “employment law part” of a dismissal, foreign nationals must take the following measures after dismissal:
Informing the immigration authorities that the employment relationship has been terminated (Section 82 (6) Residence Act)
Applying for a Job Seeker Visa or Opportunity Card at the Immigration Office (§§ 20 ff. AufenthG)
Job seeker registration with the Federal Employment Agency
Applying for unemployment benefits (if you are entitled to them, i.e. you have worked in Germany for more than 12 months)
We've written dedicated VISAGUARD articles on applying for the Job Seeker Visa and the Opportunity Card . One of our lawyers would be happy to advise you on these topics.
Summary of this Page
Dismissal protection in Germany offers employees – especially skilled foreign workers – extensive rights vis-à-vis their employer. If the Dismissal Protection Act (KSchG) applies, dismissals are only effective if there is a socially justified reason. In this case, attention must be paid not only to the form of the dismissal (written form according to Section 623 of the German Civil Code), but also to the deadlines for filing a lawsuit (Section 4 of the KSchG). Following dismissal, foreign employees must also initiate legal residency procedures, such as informing the immigration authorities and applying for an opportunity card or a job seeker visa. Early contact with a lawyer specializing in employment law and residency law not only increases the chance of receiving severance pay but also secures continued legal residence in Germany.
