Navigating a dismissal during probation can be challenging, but understanding the legal boundaries set by German labor courts is essential. The Federal Labour Court ruling 2 AZR 195/25 highlights crucial aspects of waiting-period terminations and sets clear standards for their validity. If you have been dismissed during your probationary period, knowing your rights and seeking professional legal support can make all the difference. This guide outlines what the ruling means for employees and what actions you should consider taking.
What Is a Dismissal During Probation and When Is It Lawful?
A probationary dismissal (often referred to under German law as a waiting-period termination or Wartezeitkündigung) occurs within the first six months of employment before general statutory dismissal protection fully applies. This phase serves as a trial period for both parties to assess whether the working relationship should continue. Compared to standard terminations, employers face fewer statutory hurdles when ending employment during this time frame.
Under Section 622 (3) of the German Civil Code (BGB), the statutory waiting period generally lasts up to six months. During this window, an employment contract can typically be terminated with a reduced notice period of two weeks, without the employer needing to satisfy the strict requirements of the German Dismissal Protection Act (KSchG). However, a dismissal must never be arbitrary, discriminatory, or unlawful. The employer cannot terminate an employee purely out of malice or bad faith.
In case 2 AZR 195/25, the claimant worked as a teacher in the German public sector from December 2023 until the employer issued a termination notice in April 2024. The employer cited pedagogical and professional performance deficiencies. The Federal Labour Court confirmed that such a termination is lawful provided the employer presents sufficient, objective reasons and adheres to procedural rules.
The Role of the Staff Council in Public Sector Terminations
In the German public sector, consulting the staff council (Personalrat) is a mandatory procedural requirement. Before any termination is issued, the staff council must be formally consulted to review the employer’s rationale. This consultation process serves to safeguard employee interests and ensure fair administrative procedures.
In ruling 2 AZR 195/25, the court underlined the importance of this requirement. The employer had submitted a multi-page written brief outlining the concrete grounds for termination to the district staff council. The court ruled that the consultation was conducted properly, thereby upholding the validity of the notice.
For public sector employees, a dismissal issued without the mandatory prior involvement of the staff council is legally void. If you receive a notice of termination, you should immediately examine whether employee representatives were properly consulted. An independent employment lawyer can assist you in reviewing the procedural validity of the notice.
Specific Grounds: Behavioral Issues During the Trial Period
Behavioral misconduct can provide valid justification for a dismissal during probation. In the underlying case, the claimant faced allegations regarding inappropriate physical boundaries, exceeding allocated teaching times, and a lack of professional sensitivity.
The court found that these behavioral concerns were significant enough to justify the termination. The school administration had documented the issues through formal evaluations, which provided the factual basis for the court’s decision.
For employees, it is important to note that allegations made by an employer must be factual and substantiated. If you are faced with a dismissal based on alleged behavioral issues, verifying whether the claims are substantiated and supported by evidence is critical.
Probationary Performance Reviews and the Employee’s Counter-Statement
Performance appraisals during the trial period are central to assessing suitability. In the case at hand, school leadership prepared written assessments detailing the claimant’s shortcomings. The employee was granted the opportunity to submit a formal counter-statement (Gegendarstellung).
The Federal Labour Court highlighted the importance of allowing employees to respond. While a counter-statement gives you a platform to present your version of events, in this specific case, the statements made by the employee did not refute the underlying assessments of the evaluators.
If you receive a negative performance review during your trial period, reviewing it thoroughly and preparing a well-structured response can be crucial. An independent employment lawyer can guide you in formulating a precise counter-statement to protect your professional record.
What the Ruling Means for Employees Facing Dismissal
This Federal Labour Court decision confirms that an employer may lawfully issue a dismissal during probation provided they follow the necessary administrative steps and base their assessment on justifiable, non-arbitrary reasons.
Employees are not entirely without protection during the initial six months. If a termination violates equal treatment principles, ignores mandatory works council or staff council procedures, or is manifestly arbitrary, it can be challenged in court.
If you have doubts about whether your termination complies with legal requirements, you should check the strict deadlines and conditions for an unfair dismissal claim under German law. Consulting an independent employment lawyer ensures you receive personalized advice on your legal options.
When to Seek Professional Support for an Employment Dispute
Losing a job carries significant financial and personal implications. Seeking qualified legal support allows you to understand whether your termination can be challenged or if negotiating a structured departure is feasible.
An independent employment lawyer can review your dismissal notice, assess procedural compliance, draft formal responses, and represent you in court if necessary.
If legal costs are a concern, a specialized litigation funder like RechtStark can review whether your case qualifies for commercial litigation funding. RechtStark is not a law firm and does not provide legal representation, but acts as a funding partner to cover legal expenses in exchange for an agreed share of the financial recovery.
Ultimately, understanding your legal position is essential when facing a termination. The ruling clarifies the legal standards employers must meet, and consulting an independent employment lawyer will help you evaluate your options effectively.
Note: This article is for general information purposes only and does not replace individual legal advice. For a free initial assessment of whether litigation funding may be an option for your case, you can contact RechtStark.