Your Rights as an Employee: All Information About the Special Right of Termination

Learn about the background of the special right of Termination for Employees. Find out when you can terminate your employment relationship outside of the regular notice periods.

Under the special right of termination, employees have the option to end their employment relationship without adhering to standard notice periods and deadlines. This is because the employer is also obliged to comply with and fulfill their duties under the employment contract. If there is a serious breach, employees can terminate their employment extraordinarily.

We aim to inform you about your rights and obligations as an employee, so you can understand the basics and make initial decisions. Our law firm specializes in employment matters and is always available to provide you with advice.

This article provides an initial overview of the situations in which you can exercise the special right of termination, the resulting legal consequences, and the necessary formal requirements.

Overview:

1. The Special Right of Termination - Definition and Legal Basis
2. Requirements - Deadlines, Written Form
3. Application Cases for Employees
4. Application in Fixed-Term Employment Contracts
5. Key Takeaways
6. FAQ's

1. The Special Right of Termination - Definition and Legal Basis

Before we delve deeper into the topic, here’s a brief explanation of terms:

In common usage, the terms "immediate termination" and "extraordinary termination" are often used interchangeably. However, we would like to clarify the terminology once more, as there is an important distinction:

An immediate termination is always an extraordinary termination, but an extraordinary termination is not always immediate.

An immediate termination ends the employment contract with immediate effect, based on a serious reason. Reasons for immediate termination can include significant disruptions in performance or breaches of trust, for example.

In the case of an extraordinary termination - also known as a special right of termination - the contractual relationship, which may not be terminable under collective bargaining or contractual regulations, is terminated either immediately or with a shortened notice period. Here too, a valid reason is a prerequisite for termination.

Now, let’s dive into your special right of termination as an employee in more detail. This unilateral right to terminate a contractual relationship can be based either on a clause in the employment contract or on general provisions from the German Civil Code (BGB). The special right of termination and its necessary conditions arise from Section 626 of the BGB.

According to Paragraph 1, the employment relationship can be terminated by either party for a compelling reason without adhering to a notice period. However, there must be facts that make it unreasonable to continue the employment relationship. Each case and its circumstances must be individually evaluated. We will present specific cases where the special right of termination applies to employees in Section 3, "Application Cases for Employees."

2. Requirements - Deadlines, Written Form

As an employee, you have two weeks from the time you become aware of the reason for termination or the employer's gross violation of duties to submit your resignation.

Please note that a prior warning may be required, meaning you must give your employer the opportunity to remedy the cause for termination. If you're unsure whether you can submit your resignation immediately or need to wait for this correction period, please contact us, as the legal consequences can be significant!

If you wish to exercise your special right of termination and terminate your employment contract, you must always submit your resignation in writing to your employer.

Upon request, you must immediately provide your employer with the reason for termination in writing. The resignation letter must include the following additional formalities:

• Sender
• Recipient
• Subject
• Request for written confirmation of termination
• Request for issuance of a qualified reference letter
• Handwritten signature

It is also advisable to include your expectations regarding the handling of overtime and remaining vacation days in the resignation letter.

3. Application Cases for Employees

Before exercising your special right of termination as an employee, please make an effort to gather substantial evidence. As previously mentioned, your employer must also be given the opportunity to correct the issues. Therefore, in some cases, it may be necessary to issue a warning beforehand.

The evidence you collect should always be clear and precise. It must unequivocally demonstrate that further collaboration is neither possible nor reasonable.

Additionally, keep in mind:

In general, it can be expected that the Employment Agency will impose a waiting period of up to 3 months for receiving unemployment benefits if you terminate your employment voluntarily. However, you do not need to fear a waiting period if continuing the employment is unreasonable for you and there is a valid reason for termination. You must always be able to provide verifiable evidence for this reason. If you cannot do so, the Employment Agency will temporarily suspend your unemployment benefits.

Learn in which cases a serious breach of duty by the employer can justify a special right of termination:

Missing or delayed salary payments

If your employer owes you wages or parts of your wages, this is a reason to make use of the special right of termination. However, in these cases, the employer must first be requested to rectify the issue. They must be given a warning.

Breach of duty of care

If an important work device is not functioning and poses a danger to you as an employee, you must also warn your employer and give them the opportunity to make corrections. Only then do you have the right to terminate the employment extraordinarily.

Insult or Bullying

These grounds for termination are complex and require a careful examination of the individual circumstances. Was there a prior conflict situation from which the statements arose? What is the time frame involved? How should the tone of communication within the company and industry be assessed? The level of education and the psychological condition of those involved may also be relevant. The line between insult and freedom of expression in the workplace is often unclear. Please avoid jumping to conclusions and seek professional advice.

Discrimination and Sexual Harassment

In principle, violations of the General Act on Equal Treatment are grounds for special termination and thus a breach of duties under the employment contract.

Section 3, paragraph 4 defines, among other things, unwanted sexually determined behavior that violates the dignity of the person concerned, especially when accompanied by intimidation, hostility, humiliation, or insults, as sexual harassment.

However, each individual case and the proportionality must still be examined.

Violation of Occupational Safety Regulations

Your employer is obligated to comply with the applicable occupational safety regulations. If they fail to do so, you have a special right of termination. Occupational safety regulations also include adherence to the Working Hours Act, which sets limits on maximum working hours. Constant and significant violations constitute grounds for termination.

Instructing Criminal Acts

Ideally, your employer should never request that you commit criminal acts. However, in some cases, the lines between activities like accounting fraud, bribery, and fraud can be blurred.

Employee's Occupational Disability

In cases of partial reduction in earning capacity, temporary reduction in earning capacity, temporary inability to work, or occupational disability, you as an employee have the option to exercise your special right of termination.

4. Application in Fixed-Term Employment Contracts

If you are employed under a fixed-term contract, a special right of termination is not excluded. However, since the contract automatically ends upon expiration, not only must the conditions of Section 626 of the German Civil Code (BGB) be met, but the present grievances must also be examined with particular intensity to ensure that the extraordinary termination is legally valid.

5. Key Takeaways

The use of the special right of termination should always be your last resort. Besides the fact that the legal consequences are significant, you may also need to explain the abrupt exit to future employers. This is not a reason to tolerate an unbearable situation, but consider how to present strong arguments in job interviews that strike a balance between honesty and loyalty.

In many cases, a prior discussion can resolve issues. By attempting this, you demonstrate your willingness to improve the situation. You also show that you only chose the path of extraordinary termination as a last resort. If available, contact the works council, ask colleagues for help, or seek professional mediation. Consider other options, such as transferring to a different team, relocating to another site, or taking on new responsibilities.

If there is no other option and these alternatives have been exhausted, feel free to contact us for advice.

Key Points Summary:

• Employees can terminate their employment without observing contractual notice periods in cases of serious breaches of duty.
• Legal basis: Section 626 of the German Civil Code (BGB).
• Written form is required, and providing evidence is strongly recommended.
• Applicable in cases such as delayed salary payments, health hazards, and discrimination.
• Careful examination is required for fixed-term contracts.
• Prioritize communication – special right of termination should be the last resort.
• Recommendation: Seek legal advice for individual cases.

6. FAQ's

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