If your employer cuts jobs for business reasons, it must decide who loses their job. In Germany, this choice is not free. Under the Dismissal Protection Act, the employer must compare employees in similar positions and dismiss those who are least dependent on the job first. This is called social selection (Sozialauswahl).
Social selection is often where a redundancy dismissal fails. Employers may have a real reason to cut a position, but still choose the wrong person. For you, this is a lever: either to keep your job or to negotiate a better severance.
When Social Selection Applies
Social selection is part of the protection against dismissal under the Dismissal Protection Act (Kündigungsschutzgesetz). It applies if:
- the dismissal is for operational reasons, such as a restructuring, a lost contract or the closure of a department,
- your employer has more than ten employees, counting part-time staff proportionately,
- you have been employed for more than six months.
It does not apply to dismissals for personal or behavioural reasons, and it is not needed if the entire business closes and everyone is dismissed. See dismissal for operational reasons.
Step 1: Who Is Comparable?
The comparison is made between employees who are interchangeable. This means:
- Same establishment. The comparison covers the local establishment (Betrieb), not the whole company or group. Two offices of the same company can be separate establishments.
- Same level. Employees at the same hierarchy level. A team lead is not compared with team members.
- Interchangeable work. Your employer could assign you to the other person's job under your contract, after a short, usual induction period.
Part-time and full-time employees can be comparable, unless the employer has a real business concept that requires one or the other.
Employees with special protection, for example works council members, pregnant employees or employees on parental leave, are left out of the comparison. Employees still in their first six months, on the other hand, usually have to go before those who are protected.
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Step 2: The Four Criteria
Among the comparable employees, the employer must weigh four criteria:
| Criterion | What counts |
|---|---|
| Length of service | Years with the employer, including earlier periods in some cases |
| Age | Older employees usually have more difficulty finding a new job |
| Maintenance obligations | Children and spouses you must legally support |
| Severe disability | A recognised degree of disability of 50 or more, or equal status |
No criterion has priority. The employer must weigh them all and has some leeway. Many employers use a points scheme, often agreed with the works council. A typical scheme gives points per year of service, per year of age, per dependent child and for a disability.
Example. A team of four developers must shrink by one. Developer A is 29, single, three years' service. Developer B is 41, two children, seven years' service. Developer C is 35, married, one child, four years' service. Developer D is 52, one adult child no longer dependent, twelve years' service. Under almost any scheme, A has the fewest points and is the first to go, unless the employer can show that it needs A's specific skills (see Step 3).
The employer can generally rely on your payroll and tax records. If you have children or a spouse who depend on you but who are not in these records, tell your employer in writing, ideally as soon as job cuts are announced and before any dismissal. This is common for expats whose family lives abroad.
Step 3: Exceptions
The employer may keep employees out of the selection if there is a legitimate business interest, in particular:
- Key skills or performance. An employee has knowledge, skills or performance that the business clearly needs. A general claim that someone is "better" is not enough.
- Balanced staff structure. The employer may form age groups and select proportionally within each group, to avoid an ageing workforce. This must be explained with concrete numbers.
These exceptions are a frequent point of dispute. The employer must explain them in detail in court.
Name Lists and Points Schemes
If, in a major restructuring, the employer and the works council agree on a reconciliation of interests with a list of names (Namensliste), the rules change in the employer's favour. The court then presumes that there is a real operational reason, and it only checks the social selection for gross errors. This does not apply if the situation has changed significantly since the list was agreed.
If the weighting of the four criteria was set in a works agreement or collective agreement, the court only checks this weighting for gross errors. Who was included in the comparison group is still fully checked.
A gross error is, for example, ignoring one of the four criteria entirely or leaving out an obviously comparable group of employees. See mass dismissals.
How to Check Your Employer's Choice
- Ask for the reasons. You can demand that your employer tells you which employees it compared and how it weighed the criteria. Ask in writing.
- Compare. Who else does similar work? Who has shorter service, is younger, has fewer dependants? Who was kept, and why?
- Check the deadline. You must file a claim at the labour court within three weeks of receiving the dismissal, even if you do not yet have the employer's answer. See unfair dismissal claims.
In court, it works in steps. You ask your employer to disclose its selection. The employer must explain which employees it compared and how it weighed the criteria. You must then name a specific comparable colleague who is less in need of protection. If the employer refuses to explain its choice, your claim that the selection was wrong is treated as accepted.
Selected for redundancy and not sure it was fair? Have the social selection checked before the three weeks run out.
Get Your Free Case Review →What This Means for Negotiations
An error in social selection makes your dismissal invalid if you would not have been selected with a correct selection. In practice, most cases end with a settlement, not reinstatement. A strong argument on social selection increases the severance your employer will offer. See severance pay in Germany.
If the dismissal letter states that the dismissal is for operational reasons and offers a statutory severance of half a month's salary per year of service if you do not file a claim, you can accept it by letting the three weeks pass. Check first whether the social selection was correct, because a claim may get you more.
Points for Expats
- Short service, young age. Many expats have joined recently and have no family in Germany. In a social selection, this often puts you at the top of the list. Check whether the comparison group and the exceptions are correct.
- Family abroad. Children and spouses you support count, wherever they live. Make sure your employer knows about them.
- Residence permit. If your permit depends on your job, a redundancy has consequences beyond the job itself. See losing your job and your residence permit.
Frequently Asked Questions
Can my employer choose based on performance?
Only as an exception, if the business clearly needs a particular employee. Performance in general does not replace the four criteria.
Does social selection apply in a small company?
Generally no. In businesses with ten employees or fewer, the Dismissal Protection Act does not apply, except for some employees hired before 2004. The employer must only avoid arbitrary or discriminatory choices. The three-week deadline for a claim still applies.
Are employees from other locations included?
Usually not. The comparison is limited to the establishment. But your employer must check whether you could be offered a free position at another location.
What if my employer did not do a social selection at all?
Then the dismissal is usually invalid, unless the result would have been the same anyway. File a claim within three weeks. Also check whether the works council was consulted and, for larger job cuts, whether a mass dismissal notice was filed. See mass dismissals.
