A recent case shows an employee receiving €68,000 in severance for duty breach after the employer grossly violated its duty of care. Such a payment is possible when the employer grossly violates its duty of care. In this article you will learn which behaviors count as improper and how you can improve your chances of obtaining a higher severance.
Severance for Duty Breach: What Counts as Improper Employer Behavior?
Improper behavior by the employer includes any actions that breach the duty of care owed to employees.
- Bullying and psychological harassment
- Discrimination based on gender, origin, religion, or age
- Sexual harassment in the workplace
- Unjustified warnings or threats of termination
- Deliberate withholding of wages or overtime pay
- Violation of data protection or privacy
When the employer’s conduct amounts to a severance for duty breach, the affected employee may be entitled to a higher settlement.
Legal Basis: § 1a KSchG and the Role of Duty of Care
The legal basis for a severance payment in case of operational dismissal is found in § 1a KSchG. This provision applies only if the employer explicitly cites operational reasons for the dismissal and the employee does not file a claim. In situations involving improper employer conduct, the dismissal is often deemed socially unjustified. Then a severance can be negotiated within a dismissal protection lawsuit or a settlement. A severance payment in such cases is not a statutory guarantee, but with the right strategy it can be achieved.
The statutory severance under § 1a KSchG usually amounts to half a month’s salary per year of employment. This formula applies only to operational dismissals where the employer waives a dismissal protection claim. If the employer has behaved improperly, you can demand a higher severance because the employer’s fault is taken into account. In such cases, an individual negotiation or a court decision is necessary.
Examples from Case Law: When Courts Award Higher Severance
In case law, there are repeated instances where employees receive increased severance due to bullying or discrimination. An employer who repeatedly violates the duty of care may be ordered to pay higher compensation. Even if the employer issues a termination to get rid of an unwanted employee, this can be regarded as improper conduct. In such situations, consulting a lawyer specializing in employment law is advisable to assess the chances of success.
A dissolution request following a dismissal protection lawsuit can also lead to a higher severance. If the employment relationship can no longer be continued because the trust relationship is destroyed, the court may set a severance amount. Here, the employer’s fault plays a role. The more serious the misconduct, the higher the severance tends to be. In the introductory case with €68,000, the court apparently saw significant employer misconduct, resulting in a high severance payment.
Practical Steps: Securing Your Severance
If you experience improper behavior from your employer, act quickly. Document all incidents, gather evidence such as emails, witness statements, or medical certificates. Inform yourself about your rights and seek advice from a lawyer specializing in employment law. A dismissal protection lawsuit must be filed within three weeks of receiving the notice of termination at the labor court. This deadline is crucial; missing it may allow the termination to become effective without you being able to assert any claims.
A settlement before the labor court is often faster and less costly than a lengthy trial. In many cases, employer and employee agree on a severance to avoid litigation. The lawyer can help you obtain a realistic estimate of the settlement amount. A dissolution request can also be sensible if the employment relationship cannot continue. In any case, the better prepared you are, the higher your chances of receiving an appropriate severance.
Conclusion: Achieving a Higher Severance with the Right Strategy
The €68,000 severance from the introductory case shows that courts are willing to award large sums when the employer grossly violates its duty of care. A severance for duty breach is not guaranteed, but with professional support from a lawyer specializing in employment law your chances increase considerably. If you find yourself in a similar situation, you should act promptly and have your claims reviewed. A settlement before the labor court can also be sensible to end disputes and secure a higher severance. Do not hesitate to seek legal advice – only those who know their rights can enforce them.
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.