Dismissal for Misconduct in Germany: What Employers and Employees Need to Know

Dismissal for misconduct is a special form of ordinary dismissal under German employment law. Understanding German labour law is essential for both employers and employees navigating workplace disputes in Germany.

Dismissal and Employment Protection Act

Under German employment law, the employer requires a conduct-related reason for an ordinary dismissal when the Employment Protection Act applies. In small businesses or during the probationary period, no dismissal reason is required.

Conduct-Related Dismissal Grounds

A dismissal for misconduct comes into consideration when the employee culpably violates their contractual obligations, e.g., through repeated lateness (rather minor breach of duty), persistent refusal to work, insults, criminal acts, or time fraud during working hours.

Fault and Culpability Required

In contrast to dismissal for personal reasons and dismissal for operational reasons, dismissal for misconduct absolutely requires culpable misconduct by the employee. The employer must specifically present the misconduct in a possible labour court proceeding and prove it if necessary.

For a valid dismissal for misconduct under German labour law, the following requirements must be met:

1. Warning: Generally, a prior warning is required, unless the employee's behaviour justifies immediate dismissal.
2. Culpability: The employee must have committed the misconduct culpably. A mere breach of duty is not sufficient.
3. Balancing of interests: The employer must weigh in individual cases whether dismissal is the appropriate measure. The severity of the misconduct, duration of employment, and personal circumstances of the employee must be considered.

Without these criteria being met, a dismissal for misconduct is invalid. The employer must present these requirements in dismissal protection proceedings and prove them if necessary.

A frequent application case is dismissal for misconduct due to persistent refusal to work. Here, despite multiple requests and warnings, the employee continues to consciously refuse to fulfil their contractual obligations. It's important that the employee has no right of retention and is obligated to perform work.

Example

An employee is warned multiple times because they refuse without reason to perform assigned tasks. Despite the warnings, they don't change their behaviour and continue not to work as instructed. In such a case, dismissal for misconduct can be legally permissible under German employment law – provided all requirements (e.g., works council consultation) were observed.

Note: Frequent lateness alone is generally not sufficient for an ordinary dismissal for misconduct, as long as there's no persistent refusal to work or serious breach of duty.

Employees who receive a dismissal for misconduct in Germany should (almost always):

• file an unfair dismissal claim with the labour court within three weeks and
• seek legal advice beforehand from an employment lawyer.

After the 3-week deadline expires, the employee has little chance of continuing the employment relationship. Whether the employee wants severance pay or continued employment, the correct type of claim is always the unfair dismissal claim.

Warning Required?

Unlike dismissal for personal reasons, a warning is generally necessary since the employee's behaviour must be culpable. Only in exceptional cases can a warning be dispensed with.

Employee's Severance Pay Entitlement?

There is no direct (statutory) entitlement for the dismissed employee to severance pay. In practice, however, an amicable solution often occurs within the framework of a court settlement after filing an unfair dismissal claim. You can estimate potential severance amounts using our severance pay calculator.

Termination Agreement

Concluding a termination agreement possibly with severance payment is often the wrong path for the employee, as this threatens a suspension of unemployment benefits.

Employers should observe the following points before issuing a dismissal for misconduct:

• Document employee misconduct
• Issue warnings if necessary
• Conduct balancing of interests
• Consult works council (if present)
• Legal advice before issuing dismissal

Employees who have received a dismissal for misconduct should:

• Have the dismissal legally reviewed by an employment law specialist in Berlin
• File an unfair dismissal claim within three weeks of receiving the dismissal
• Document behaviour to potentially refute allegations

• the breach of duty (main or secondary obligation),
• the disruption that occurred and its effects,
• the risk of repetition (negative prognosis),
• the balancing of interests conducted,
• and the ultima ratio principle (e.g., prior warning).

Important: Social data of the employee (e.g., age, length of service, maintenance obligations) must also be communicated to the works council.

Warnings

If a warning was previously issued, this too – including any counter-statement by the employee – must be communicated to the works council. If the warning contains incorrect allegations, the consultation remains valid, provided the breach of duty is essentially correct and no intentionally false statements were made.

Works Council Consultation

The employer must clearly communicate to the works council that a dismissal for misconduct is intended. A later switch to a dismissal for personal or operational reasons in dismissal protection proceedings is generally not possible.

Practice Tip: To be able to refer to all relevant circumstances in dismissal protection proceedings, the works council consultation should be as comprehensive and complete as possible.

The main duties of the employee include particularly the proper provision of work performance. Under German employment law, dismissal for misconduct can be justified in the following cases:

Refusal to Work

A classic reason is persistent refusal to work. This occurs when the employee consciously and repeatedly fails to perform assigned work or persistently opposes legitimate instructions from the employer. Even a single, particularly serious refusal to work can – depending on individual circumstances – justify dismissal. The decisive factor is that the employee was obligated to perform work and had no right of retention.

Unauthorised Leave

If an employee takes unauthorised leave or extends it without permission, this can regularly justify dismissal. In such cases, a warning is often unnecessary since the employee cannot expect tolerance from the employer.

Frequent Lateness

Repeated unexcused lateness can also – after prior warning – justify dismissal for misconduct. The extent and frequency of delays are decisive.

Poor Performance

If an employee culpably violates their work duty by providing permanently and significantly below-average performance, this can also justify dismissal. The determining factor is whether the employee exhausts their personal performance capacity. If they significantly and permanently exceed the average error rate, they must demonstrate in case of dispute that they nevertheless worked to the best of their ability.

No Grounds for Dismissal

Not every breach of duty justifies dismissal. If, for example, a legitimate right of retention exists (due to outstanding wage payments or serious workplace safety violations by the employer), dismissal for refusal to work is excluded. Participation in a lawful strike may also not lead to dismissal.

Important

Dismissal for misconduct requires conduct by the employee that violates the contract, i.e., a violation of contractual obligations. If such behaviour is lacking, only dismissal for personal reasons comes into consideration.

An important reason generally exists only when the objectively contract-violating behaviour is also unlawful and culpable. The degree of fault is relevant primarily for the balancing of interests. In exceptional cases, however, even non-culpable behaviour can justify dismissal if, due to objective circumstances, repeated breaches of duty by the employee are to be expected.

Even the violation of a main or secondary obligation constitutes sufficient disruption of the employment relationship. Further concrete disruption of work processes, work organisation, or workplace peace is not required. In case of a mere secondary obligation violation, the lesser weight of this breach of duty must be reinforced by aggravating circumstances. In such cases, a prior warning is regularly required for an important reason.

Practice Tip

Before issuing a dismissal for misconduct, it should always be examined whether a warning or milder measures are sufficient. Only in cases of particularly serious breaches of duty can immediate dismissal be justified.

Facing a dismissal for misconduct can be overwhelming for both employees and employers. Whether you need assistance with understanding your rights under German employment law, filing an unfair dismissal claim, or navigating complex employment law procedures, professional legal guidance is essential.

For detailed information on dismissal procedures and your legal options, consult our comprehensive termination guide which covers all aspects of employment termination in Berlin.

As an experienced employment lawyer in Berlin, I provide specialized legal support for dismissal cases, helping clients understand their rights and achieve the best possible outcomes in employment disputes.