German labor law permits dismissal only under strict legal conditions. One of the most sensitive and complex categories is the dismissal for behavioural reasons—known in German as verhaltensbedingte Kündigung. This type of termination is based on employee misconduct that violates contractual obligations. However, unlike in other jurisdictions where employers may dismiss at will, German law requires that such dismissals follow a clear legal structure, and are usually preceded by a formal warning. This article explains what qualifies as a valid behavioural reason for dismissal, the legal process involved, and what rights employees have to contest it.
Content
- 1. What Is a Dismissal for Behavioural Reasons?
- 2. Common Examples of Behavioural Misconduct
- 3. Legal Conditions for Valid Behavioural Dismissal
- 4. Ordinary vs. Extraordinary Dismissal
- 5. Formal Requirements
- 6. Employee Rights and Legal Remedies
- 7. Can Behavioural Dismissals Be Avoided?
- 8. What Expats Should Know
- Conclusion
1. What Is a Dismissal for Behavioural Reasons?
A dismissal for behavioural reasons occurs when an employee intentionally or negligently violates contractual duties, and the employer can no longer reasonably continue the employment.
To be lawful, the employer must prove that:
- The employee breached their obligations intentionally or through gross negligence
- The breach had a negative impact on the employment relationship
- A prior warning was issued (in most cases)
- The employer considered all less severe options before dismissal
📌 Courts examine such dismissals carefully, especially when the employee has been with the company for several years.
2. Common Examples of Behavioural Misconduct
Examples of behaviour that may justify dismissal include:
🔸 Repeated unexcused absences or tardiness
- Especially after written warnings
- Affects operational reliability
🔸 Insults or verbal abuse
- Toward colleagues, managers, or customers
- Depending on severity and context
🔸 Theft or fraud
- Even small-value items (e.g. company pens, food)
- Considered a serious breach of trust
🔸 Violation of workplace policies
- E.g. using company equipment for private purposes
- Ignoring safety regulations or COVID-19 protocols
🔸 Refusal to work
- Ignoring instructions without justification
- Repeated failure to perform core tasks
3. Legal Conditions for Valid Behavioural Dismissal
To be legally enforceable, a dismissal for behavioural reasons must meet the following conditions:
1. Breach of Duty
The employee must have clearly violated contractual obligations, such as loyalty, diligence, or confidentiality.
2. Intent or Gross Negligence
The breach must have been deliberate or due to serious carelessness. Honest mistakes or misunderstandings may not be enough.
3. Negative Impact on Employment
The employer must demonstrate that the incident has damaged the trust essential to the employment relationship.
4. Prior Written Warning (Abmahnung)
- In most cases, the employee must have received at least one prior written warning for similar behavior
- The warning must outline the misconduct and threaten dismissal in case of repetition
📌 Exceptions apply to extremely serious cases (e.g. theft or violence), where dismissal without warning may be permitted.
4. Ordinary vs. Extraordinary Dismissal
🔹 Ordinary Dismissal
- Follows the contractual or statutory notice period
- Used for persistent but not extreme misconduct
- Requires at least one prior warning
🔹 Extraordinary Dismissal (Fristlose Kündigung)
- Termination without notice, effective immediately
- Reserved for very serious misconduct (e.g. criminal acts, severe insubordination)
- Must be issued within 2 weeks of the employer becoming aware of the misconduct
📌 The legal threshold for extraordinary dismissal is very high and often challenged in court.
5. Formal Requirements
Regardless of the reason, behavioural dismissals must be:
- In writing (emails or verbal notices are invalid)
- Signed by an authorized representative
- Include the correct termination date and notice period
- If a works council exists, it must be formally consulted
Failure to meet these requirements can render the dismissal legally invalid.
6. Employee Rights and Legal Remedies
Employees have the right to file an unfair dismissal claim (Kündigungsschutzklage) within 3 weeks of receiving the termination letter.
The labor court will assess:
- Whether the misconduct occurred as described
- Whether the warning was appropriate and sufficient
- Whether dismissal was the only reasonable outcome
Possible outcomes:
- Reinstatement
- Negotiated severance
- Confirmation of the dismissal as lawful
📌 Many dismissals for behavioural reasons fail in court due to procedural errors or insufficient documentation.
7. Can Behavioural Dismissals Be Avoided?
Yes—employers are required to explore less severe measures before dismissing an employee:
- Written warning (Abmahnung)
- Internal transfer or reassignment
- Coaching, mediation, or disciplinary interviews
Only if these fail, or if the misconduct is extreme, can termination be considered lawful.
8. What Expats Should Know
Expats and international professionals should be aware that:
- Behavioural dismissals may impact residence permits, especially if tied to employment
- You may still be entitled to unemployment benefits, depending on the case
- Employers must follow the same legal procedures regardless of your nationality
- You have the right to contest a dismissal in court and seek legal advice
📌 Never sign a mutual termination agreement without understanding the consequences—especially in a behavioural case.
Conclusion
A dismissal for behavioural reasons is a serious matter in Germany, but it can only be justified under clear, well-documented conditions. Employers must prove intentional or negligent misconduct, issue appropriate warnings, and follow strict procedures.
For employees—especially expats—understanding these requirements can protect your legal rights and career. If you’re facing behavioural dismissal, seek legal advice and act within the 3-week deadline to preserve your rights.
