Ordinary termination (ordentliche Kündigung) ends an employment relationship in compliance with the statutory or collectively agreed notice periods – it is the most common form of termination under German employment law. Employers must observe the correct reason for termination (operational, conduct-related, or person-related), comply with the written form requirement, and, where applicable, consult the works council beforehand. Formal errors can render a termination invalid.
What is Ordinary Termination?
Ordinary termination is a unilateral, declaratory act by one contracting party to end an employment relationship at the next possible date, in compliance with the applicable notice period.
The key distinction from extraordinary termination lies in the notice period: with ordinary termination, the employment relationship continues until the end of the notice period. Extraordinary (immediate) termination under § 626 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), by contrast, ends the relationship immediately – and is only permissible in cases of a serious cause, such as theft or a grave breach of trust.
Both parties may terminate ordinarily: employers and employees alike. However, employers are generally subject to longer notice periods than employees.
Legal Framework
§ 622 BGB – Statutory Notice Periods
The notice periods applicable to employers are governed by § 622 BGB and are graduated according to length of service:
For employees, the standard notice period is 4 weeks to the 15th or end of the month – regardless of length of service. Longer periods may be agreed upon by collective bargaining agreement or individual employment contract.
Protection Against Dismissal Act (KSchG) – When Does It Apply?
The Protection Against Dismissal Act (Kündigungsschutzgesetz, KSchG) applies under two conditions: the employer regularly employs more than 10 employees (calculated in full-time equivalents), and the employee being dismissed has been employed for more than 6 months (§ 1 KSchG).
When the KSchG applies, the termination must be socially justified – meaning it requires a recognised legal ground. Without the KSchG (e.g. in small businesses or during the probationary period), no stated reason is required.
The Three Valid Grounds for Termination
When the KSchG is applicable, the termination must be based on one of three recognised grounds:
Operational Termination (betriebsbedingte Kündigung)
Operational termination is based on business decisions by the company – such as workforce reduction, restructuring, or plant closure. It requires that the position is permanently eliminated and that no alternative employment is available within the company.
Particularly important: where multiple comparable employees are affected, the employer must conduct a social selection (Sozialauswahl). The criteria to be weighed are length of service, age, maintenance obligations, and severe disability. A flawed or absent social selection exposes the termination to legal challenge.
Conduct-Related Termination (verhaltensbedingte Kündigung)
Conduct-related termination requires culpable misconduct on the part of the employee – for example, repeated unexcused absences, refusal to work, or insulting a manager.
As a general rule, a prior formal warning (Abmahnung) is required. The warning must identify the specific misconduct, demand a change in behaviour, and state the consequences in case of repetition. Without a prior warning, conduct-related termination is only valid in cases of particularly serious misconduct.
Person-Related Termination (personenbedingte Kündigung)
Person-related termination applies when employees are permanently unable to fulfil their contractual obligations due to personal circumstances or characteristics. The most common case is long-term illness – though termination on these grounds is only permissible under strict conditions: a negative long-term prognosis, a significant operational disruption, and a balancing of interests that weighs against continued employment.
Notice Periods During the Probationary Period
During the probationary period – which may not exceed 6 months – § 622 para. 3 BGB provides for a shortened notice period of 2 weeks, effective any calendar day. Neither employers nor employees are required to terminate to a specific date during the probationary period.
Important: even during probation, the written form requirement applies – and, where a works council exists, the obligation to consult it before issuing any termination.
Formal Requirements – How to Carry Out a Termination Correctly
Formal errors are the most common reason terminations fail before the labour court (Arbeitsgericht). The following checklist covers the key requirements:
Checklist for a legally sound ordinary termination:
- Written form (§ 623 BGB): The termination must be in writing and bear an original handwritten signature. Terminations by email, WhatsApp, or verbal notice are invalid.
- Clear declaration: The wording must be unambiguous. Phrases such as "I am considering terminating" are not sufficient.
- Date and notice period: State the last working day or the applicable notice period explicitly.
- Ensure receipt: The termination letter must be delivered to the employee – ideally by hand with a witness, or by drop-box registered mail (Einwurfeinschreiben). Note: recorded delivery requiring a signature is not recommended, as the employee may refuse to collect it.
- Works council consultation (§ 102 BetrVG): Where a works council exists, it must be consulted before any termination. A termination issued without prior consultation is invalid.
- Check special protection: Before issuing the termination, verify whether the employee belongs to a protected group (see below).
- Documentation: Keep written records of all steps – warnings, works council consultation, and confirmation of receipt.
Special Protection Against Dismissal
Certain groups of employees enjoy heightened protection from termination. Termination of these individuals is either entirely prohibited or requires prior approval from a government authority:
Violations of special protection rules render the termination invalid – regardless of whether all other formal requirements have been met.
Common Mistakes – and How to Avoid Them
In practice, the same pitfalls tend to occur repeatedly:
- Missing works council consultation: Overlooked or initiated too late – the termination is then invalid.
- Incorrect written form: Termination sent by email or without an original signature.
- Uncertain receipt: Termination left in an office pigeonhole rather than delivered in person or by proper postal service.
- Absent or flawed social selection: In operational terminations, the selection criteria are incorrectly applied or weighted.
- Special protection overlooked: Employer is unaware that the employee is severely disabled or pregnant.
Consistent documentation of all HR measures – from the first formal warning to confirmed receipt of the termination letter – is the most effective protection against a successful unfair dismissal claim.
Frequently Asked Questions About Ordinary Termination
What is the difference between ordinary and extraordinary termination?
Ordinary termination ends the employment relationship in compliance with the notice period – no serious cause is required where the KSchG does not apply. Extraordinary (immediate) termination under § 626 BGB ends the relationship at once and requires an important cause, such as a severe breach of trust or theft. It is the stricter instrument and harder to sustain in practice.
What notice periods must I observe as an employer?
The periods are governed by § 622 BGB and depend on length of service. During the probationary period, 2 weeks' notice is required, effective any calendar day. Afterwards, 4 weeks' notice applies to the 15th or end of the month – and from 2 years of service onwards, the periods increase incrementally up to 7 months. Employers are always subject to longer periods than employees.
Do I always need a stated reason for termination?
No – but only under certain conditions. Where the KSchG does not apply – i.e. in companies with up to 10 employees or during the first 6 months of employment – no reason is required. Where the KSchG does apply, one of the three recognised grounds (operational, conduct-related, or person-related) must be present.
Must a formal warning precede a conduct-related termination?
As a general rule, yes. The warning must identify the specific misconduct, demand a change in behaviour, and state the consequences if the behaviour continues. Only in cases of particularly serious misconduct – such as criminal offences – may the warning be dispensed with.
What must a termination letter contain?
At minimum: an unambiguous declaration of termination, the termination date or applicable notice period, and an original handwritten signature (§ 623 BGB). A statement of reasons is not mandatory – unless the KSchG applies and the works council has requested it. Termination by email, WhatsApp, or verbally is not legally valid.
What special protection against dismissal must employers observe?
Pregnant employees and new mothers up to 4 months after birth are generally protected from termination (§ 17 MuSchG). Works council members enjoy special protection under § 15 KSchG. Severely disabled employees (GdB ≥ 50) may only be dismissed with the prior approval of the Integration Office (§ 168 SGB IX). Employees on parental leave are protected under § 18 BEEG.
How long does an employee have to challenge an ordinary termination?
Under § 4 KSchG, employees have 3 weeks from receipt of the termination letter to file an unfair dismissal claim (Kündigungsschutzklage) with the labour court. This deadline is strict – missing it generally means losing the right to contest the termination.
Conclusion
Ordinary termination is the primary instrument for ending employment relationships under German law. For HR professionals, the essentials are: know the notice periods under § 622 BGB precisely, ensure written form and confirmed receipt, consult the works council in good time, and always check for special protection from dismissal. Those who consistently follow these steps and document every measure carefully will significantly reduce the risk of a successful unfair dismissal claim.
When a termination creates a vacancy, getting the replacement hire right matters. The digital platform Aivy supports companies in filling roles objectively and fairly – using scientifically validated assessments that reduce unconscious bias.
Sources
- § 622 BGB – Notice Periods for Employment Relationships. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/bgb/__622.html
- Protection Against Dismissal Act (KSchG), in particular §§ 1, 4. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/kschg/
- Works Constitution Act (BetrVG), §§ 99–102. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/betrvg/
- Maternity Protection Act (MuSchG), § 17. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/muschg_2018/
- SGB IX, § 168 – Requirement of Consent. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/sgb_9_2018/__168.html
- Guide to Employment Law (Ratgeber Arbeitsrecht). Federal Ministry of Labour and Social Affairs (BMAS), 2023. https://www.bmas.de/DE/Arbeit/Arbeitsrecht/ratgeber-arbeitsrecht.html
Make a better pre-selection — even before the first interview
In just a few minutes, Aivy shows you which candidates really fit the role. Beyond resumes based on strengths.
