Silence Isn’t Consent: German Labour Court Rules on Disability Representative Timeline in Dismissals
12.06.2026 - 00:13:56 | boerse-global.de
A German employer that notified its representative body for disabled workers of a planned dismissal during the employee’s probationary period thought it had ticked the right box. The Federal Labour Court (Bundesarbeitsgericht, BAG) saw it differently: a simple note of receipt does not satisfy the law.
In its ruling at the end of January (case reference 2 AZR 128/25), the court declared the termination invalid. The company had informed the Schwerbehindertenvertretung (SBV), the statutory body representing disabled employees, and obtained a document confirming that notice had been taken. But the SBV had not yet issued a final opinion on the matter, nor had it explicitly waived its right to do so – and the one-week deadline for that statement, prescribed in Section 178 Paragraph 2 Sentence 3 of the Social Code Book IX (SGB IX), had not expired.
Just as the BAG’s ruling shows that missing a procedural step can invalidate a dismissal, UK employers face their own compliance risks when health and safety documentation falls short. Without proper risk assessments and records, a business can be exposed to fines or legal action. That’s why thousands of UK companies already rely on the free Health & Safety Toolkit, which provides ready-to-use templates and checklists to keep you compliant with the law. Download the free Health & Safety Toolkit
That detail made all the difference. Under German labour law, the obligation to involve the SBV applies from an employee’s first day on the job, regardless of the six-month waiting period for general dismissal protection under the Kündigungsschutzgesetz. The BAG stressed that the employer must either wait for a definitive written opinion from the disability representatives or obtain an express waiver of their right to comment.
The time limits mirror those for works councils: one week for ordinary dismissals, three days for extraordinary (summary) terminations. Missing the window or failing to secure a proper conclusion opens the door to a successful challenge in court.
What Constitutes a Legally Sound Warning
For most dismissals based on conduct, a formal warning (Abmahnung) is mandatory. Courts scrutinise these documents carefully and require three components:
- A precise description of the misconduct, including date, time and circumstances
- A clear statement that the employee has breached a contractual duty
- An unambiguous threat of consequences up to and including dismissal
Vague accusations will not hold up. Employees who receive an inaccurate or overly broad warning can demand its removal from their personnel file or file a counter-statement. For minor infractions multiple warnings are typically required, but in cases of serious misconduct – such as theft or time-recording fraud – an employer may proceed without any prior warning.
Extra Hurdles for Suspicion-Based Dismissals
When a company terminates someone on the grounds of a strong suspicion rather than proven facts, the bar is higher. The employer must base its suspicion on objectively verifiable facts pointing to a severe violation. Crucially, it must hear the employee’s side of the story within one week of learning of the suspicion. Only after that hearing does the two-week limitation period for an extraordinary dismissal under Section 626 Paragraph 2 of the Civil Code (BGB) begin to run. The employer is also obliged to take all reasonable steps to investigate the matter further.
The Three-Week Window for Legal Action
An employee who receives a written notice of termination has exactly three weeks from the date of delivery to file a dismissal protection lawsuit (Kündigungsschutzklage) with the labour court. It is illegal for an employer to demand that the worker waive that right in advance – for example, in a standard-form contract without offering any compensation – a principle the BAG already established in 2007.
Employers who face strict procedural deadlines in Germany are not alone – UK businesses must also keep pace with their own legal duties under the Health & Safety at Work Act. Staying compliant means having the right documentation at hand. The free Health & Safety at Work Act 1974 Toolkit includes nine practical tools, from risk assessments to director liability checklists, designed to help you avoid common pitfalls. Download the free Health & Safety at Work Act 1974 Toolkit
If both sides reach a settlement, a common formula for calculating severance is half a month’s gross salary for every year of service. But employees should be aware that signing a mutual termination agreement (Aufhebungsvertrag) can trigger a benefit cut (Sperrzeit) from the unemployment insurance agency. Moreover, any unused vacation leave that cannot be taken in kind before the employment ends must be paid out by the employer.
The BAG’s latest ruling serves as a reminder that Germany’s procedural rules around dismissals remain demanding – and that even a well-intentioned notification step can prove fatal if the paperwork is not complete.
