When do I have protection against dimissal?

Employees are protected against dismissal under the Dismissal Protection Act (KschG) if their employment relationship has existed in the same business or company for more than six months without interruption, § 1 Abs. 1 KSchG.

(1) Existence of an employment relationship 

The Dismissal Protection Act only protects employees who are personally dependent on the employer and bound by instructions. Accordingly, self-employed persons do not fall under the definition of employee, meaning that the Dismissal Protection Act does not apply to this group. 

In unclear cases, the following criteria are decisive for the distinction:

•  actual authority of the employer to issue instructions, 
• commitment to working hours and place of work, 
• dependence of the employee on work materials provided by the employer and
•  subordination to a management position. 

The employment relationship is established when the employee and employer conclude an employment contract. 

(2) Waiting period of six month

In addition, the employment relationship must have existed in the same business or company for more than six months without interruption in order for the employee to obtain protection against dismissal in accordance with the Dismissal Protection Act.

ATTENTION: The statutory six-month period also applies if a longer probationary period was agreed in the employment contract.

The waiting period begins when mutual rights and obligations of the parties to the employment contract are established. This is usually, but not necessarily, the day on which the employee is due to start work.

In addition, there must be no interruption to the employment relationship - no matter how slight - during the waiting period. The employment relationship must be uninterrupted.

 Exceptionally, an interruption is harmless

•  if it takes place at the instigation of the employer, 
•  is relatively short and 
•  there is a close factual connection between the successive employment relationships. 
  

ATTENTION for trainers and trainees: A period of training for the purpose of vocational training must be included in the waiting period if it was completed with the same employer immediately before the start of the employment relationship. 

(3) small business

According to § 23 Abs. 1 S. 3 KSchG, the employment relationship must exist in a company in which, as a rule, more than 10 employees are employed. According to general case law, the small business clause only applies to businesses located in Germany. 

Accordingly, for employees with a regular weekly working time 

• of no more than 20 hours a value of 0.5 
• of no more than 30 hours a value of 0.75 
• of more than 31 hours a value of 1 

All values must add up to more than 10. 

ATTENTION for existing employees: The lower threshold value continues to apply here in accordance with § 23 Abs. 1 S. 2 KSchG.

(4) Conclusion

 If all three requirements are met, the KSchG is applicable.