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My employer threatened me verbally, saying that he/she will search and find a critical error, in order to end my employment contract immediately, if I don't end the employment relationship from my side.

Is it fine to threaten an employee like this? Otherwise, what are the consequences?

Additional info:

  • Company location: Berlin, Germany
  • Company size: 11-50
  • Employment relationship duration: 4 years
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Bojan
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    You might want to elaborate on the termination clause(s) in your contract as well as what prompted the employer to [suddenly?] adopt that odd behavior. For evidentiary purposes, make sure your interactions with the employer on this matter are in writing. – Iñaki Viggers Jan 04 '22 at 14:23
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    The sudden odd behavior of the employer is that they got a replacement, more experienced and a German-speaking one.

    The termination clause is the standard one.

     – Bojan Jan 04 '22 at 16:46
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    The answer profoundly depends on the existence of such an error. – fraxinus Jan 05 '22 at 13:04
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    @fraxinus No it doesn't. Traditionally what happens is "selective enforcement" where the employer suddenly insists - for this employee only - that a rule which had never been enforced before and therefore regarded by employees as optional was always critical. This strategy isn't legal either, but much harder to prove in court. – Marianne013 Jan 06 '22 at 12:02
  • @Marianne013 ...sometimes. Usually it is easier for both sides to part ways in officially good terms than to fire an employee "for a reason" - even if the reason is unequivocal and well-documented. The reasons may range from office politics to bad publicity for the employer. Add in some language-based misunderstanding and you get the question above. – fraxinus Jan 06 '22 at 16:25
  • This question may also be suited to the Workplace.SE. It may be worth considering a move. – Neil Meyer Jan 06 '22 at 19:17
  • What your employer is referring to are mistakes like charging your phone on a company socket or grabbing something out of the trashcan that you can use at home. Note that neither of these cases was dismissed outright, in fact one went through the courts for four years. – Jan Jan 07 '22 at 11:01
  • Broadly no; of course not.

    In any territory, including Germany, it is allowed for an employer to ask an employee to quit a job…

    In no territory, including Germany, is it permitted for an employer to threaten to find a critical error to end a contract immediately. If the employer does find a critical error justifying the immediate ending of contract

     – Robbie Goodwin Jan 08 '22 at 00:12

4 Answers4

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Your employer is most likely bluffing. It is better to be fired than to quit voluntarily.

The problem with quitting voluntarily is that you won't get unemployment benefits (Arbeitslosengeld I) for a while. So don't quit voluntarily if you aren't keen on living from savings for three months. If you want to quit, get another job first. (You should get another job anyway instead of working for a toxic employer.)

Your employer can only terminate your employment under certain circumstances, and with certain notice periods. Germany is very employee-friendly.

  • Your company's establishment is currently large enough that the Kündigungsschutzgesetz (KSchG) applies. To be clear, it doesn't matter how large the company is overall, only how many employees there are in the office, shop, or other place of business. Part-time employees are counted partially. Contractors are counted as well. The KSchG fully applies if there are typically more than 10 (11 or more) employees. The KSchG does not apply to company leadership, e.g. C-level executives.

  • Under the KSchG, the employer can terminate employment for one of three reasons: reasons in your person, reasons in your behavior, and operational reasons

  • Personenbedingte Kündigung: Your employment can be terminated for reasons in your person if you are unable to carry out work in the future, for example if you need sick days so frequently that this puts an unreasonable burden on the employer. It is generally impossible to use this reason without the normal notice periods.

  • Verhaltensbedingte Kündigung: You can be fired for reasons in your behavior if you committed some gross misconduct. Typically this requires an Abmahnung (written warning) so that you have opportunity to cease the problematic behavior. For example, you might get an Abmahnung the first time you skip a shift, and get fired the second time.

    In especially severe cases of misconduct, it is possible to skip the Abmahnung and/or the notice period and to fire an employee on the spot. For example, this might happen if you embezzled funds or stole your employer's property, even if the monetary damage was very small. As such dismissal with cause stems from your behavior, you would not get unemployment benefits for three months.

  • Betriebsbedingte Kündigung: If the company has to downsize for economic reasons, it can lay off workers. However, the employer must apply social criteria for selecting the employees to lay off. Factors are: the length of employment, age, support obligations for children or other dependents, and disability status. That is, a young, new, childless and able-bodied employee is more likely to get axed.

  • If you have a union (Betriebsrat) they can veto a termination in certain cases.

  • These criteria can be clarified via collective bargaining agreements, but cannot be circumvented in an individual contract. So your employer will not be able to find any error in the contract that will allow them to fire you.

  • The best they could do is to go really carefully over your application and paperwork to find any misrepresentation, and use that as the basis for a Verhaltensbedingte Kündigung. However, it is quite unlikely that they will find a misrepresentation so severe that it could serve as grounds for firing you without notice.

  • Minimum notice periods are given in law. The minimum is one month notice. Your contract cannot have a shorter notice period in your context.

    In case of a dismissal for exceptional reasons (e.g. theft), no notice period is necessary.

  • If you are terminated, go to a lawyer. You only have three weeks to file a lawsuit. Contacting the lawyer should be the second thing you do after getting fired, with the first thing being the registration with the Arbeitsagentur to start the clock for unemployment benefits.

    If your employer is making unprofessional threats like claiming that there could be a “critical error” in your contract, it is quite possible that the termination notice could be deficient in some way.

    If the dismissal was improper, a court can award compensation (lost wages) and reinstate the employment, though this is unlikely to be desired. Your wage from subsequent jobs (or wages you could have earned if you had looked for a job) will be subtracted from the lost wages.

To summarize this large text dump, firing an employee is difficult unless the employee does something very stupid like stealing from the employer.

Therefore: reasonable employers that want to get rid of an employee don't look for errors in the contract. Instead:

  • They watch you very closely to find any behavior that merits a written warning (Abmahnung). This builds a case for a termination with cause.

  • They offer an agreement to terminate the contract (Aufhebungsvertrag). With such an agreement you mutually terminate the employment. You won't get unemployment benefits for three months since this was your decision, so typically these agreements provide for generous compensation. A reasonable employer knows that paying for the notice period + additional compensation is cheaper than dealing with an unhappy employee + a potentially invalid termination + a prolonged legal battle.

Of course, less reasonable employers resort to bullying to get you to quit yourself. This is cheaper than paying compensation with an Aufhebungsvertrag.

amon
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    It might be a hardball attempt to start the negotiation for an Aufhebungsvertrag. Or a ruthless employer who doesn't expect the employees to know the law. – o.m. Jan 04 '22 at 18:15
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    @o.m. or an employer who doesn’t know the law - there are a lot of those. – Dale M Jan 04 '22 at 21:02
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    Re: "If your employer is making unprofessional threats like claiming that there could be a 'critical error' in your contract": By my read of the OP, the employer isn't claiming that there's a critical error in the contract, but rather, that they'll find a critical error on the OP's part that would let them justify terminating the contract. – ruakh Jan 05 '22 at 00:17
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    A union is not quite the same as a Betriebsrat, whose members may or may not be in any union? And if the dismissal was ruled improper, is the 3-month block for Arbeitslosengeld I lifted as well? – gerrit Jan 05 '22 at 08:40
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    Well written up. The employer obviously is trying the bluff in order to get rid of you without an "Aufhebungsvertrag" including a compensation. They think you are a foreigner with no clue of deutsches Arbeitsrecht. Well, now you can correct them with your crowd-sourced knowledge ;-). Good luck. – Peter - Reinstate Monica Jan 05 '22 at 08:58
  • About the embezzle, one should be really careful. Charging private mobile phone is not considered embezzlement, but people tried to frame it like that. I think one person was fired for writing their termination letter on company paper (seems like a particularly bad company, I mean why go for fristlose Kündigung if they staff quit already?) – lalala Jan 05 '22 at 09:03
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    I would like to amend that it is even unlawful to press (or should I say: threaten) an employee like this. However, the problem is the proof, as I bet this has been said with no witnesses present. – not2savvy Jan 05 '22 at 11:04
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    Just as ruakh, I read the post as saying that the employer will look for an error in employee's work. Maybe you can clarify if it's possible to terminate based on honest error that's committed while doing one's duties? In my country it can't serve as a basis for termination. – Džuris Jan 05 '22 at 15:06
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    @lalala Do you know how the case with the termination letter on company paper wnet? After all, writing the termination letter is IMHO quite work-related (not related to the primary work as employee, but "meta" in similar way as request for days off or the like) – Hagen von Eitzen Jan 05 '22 at 16:33
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    @Džuris: That would get you an Abmahnung (formal warning) at worst. An employer can instruct you to be more careful, but humans make the occasional error. A pattern of recklessness however would serve as a cause for termination. – MSalters Jan 06 '22 at 09:57
  • To emphasize "get another job": besides getting documentation of all that happens with your current employer, I'd recommend making getting another job top priority. At the moment you apply for a new job "aus ungekündigter Stellung" (from not-canceled position) which is much easier. At the very least you have to expect that your current employer will not write a nice Arbeitszeugnis. So apply while you can truthfully say that you do not have a fresh Arbeitszeugnis and you do not want to advise your employer that you are looking for a new job (which is a perfectly valid and common argument) – cbeleites unhappy with SX Jan 06 '22 at 19:15
  • "It is better to be fired than to quit voluntarily." from a benefits perspective: yes, from a perspective of finding new employment quickly instead of worrying about benefits: up for discussion. – rackandboneman Jan 07 '22 at 10:00
  • @cbeleitesunhappywithSX Not necessarily true that they won't write a nice recommendation...a nice recommendation is a very cheap way to get rid of an employee whom you want gone, if you think it will actually result in them gone. – user3067860 Jan 07 '22 at 22:37
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Is it fine to threaten an employee like this?

No. It's actually a crime (StGB §240 Nötigung).

If they can do it that way, what are the consequences?

They absolutely cannot. Ending an employment contract immediately (BGB §626 Fristlose Kündigung) is only possible if there are facts that make continuing the employment to the end of the notice period "intolerable" after considering both sides' interests. Generally, this applies when the employee substantially violates the contract or intentionally does something damaging to the employer. Examples would be working hours fraud, sexual harassment of colleagues, or passing business information to a competitor. Errors or mistakes, no matter how critical, pretty much never fulfull this criterion.

How should I react to this threatening?

Record everything. If it's not in writing, create detailed meeting notes (i.e. what they said, when, where, in what context). Insist on written instructions for everything that might be construed a breach of contract, like "you don't have to come to work tomorrow". Do not give in to the threats, don't sign anything, but do start looking for a new job, because you sure don't want to stay in such a toxic environment.

I'm pretty sure they know they don't stand a chance, so the most likely outcome is that they'll fold and keep paying you until the end of the notice period. If they really try to go through with it, consult an employment lawyer.

phoog
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Michael Borgwardt
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    "absolutely cannot", "only possible": The tragic thing is: Wo kein Kläger, da kein Richter ("Where there's no plaintiff, there is no judge" - rough translation), and I think this is happening everyday even under (the radar of) German laws. – Sebastian Mach Jan 06 '22 at 07:13
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amon gives a good answer, but let me approach it from a different direction.

Frankly you don't want to be working for a company that wants you gone. Even if they can't get rid of you, they can make your life very unpleasant indeed. On the other hand you want a stable job, and the money you are due if they fire you. Here is my advice:

  1. Take a copy of every piece of documentation you can find. Include your employment contracts, offer letters, all communication regarding this matter, your past performance reviews, and any emails or other communications that talk about your performance, duties or job description. Move the copies to somewhere you can still get them if you are not allowed access to your office or office computer systems. You will need these, and you want to be able to get at them if you are locked out of the office.
  2. Consult a lawyer. This situation isn't as unusual as you think. Lawyers will know what to do and what you are entitled to, and can give you advice on more than just the legal situation. They are used to dealing with things like this. The cost will be well worth it. Often merely the fact that you have a lawyer involved will stop the company doing borderline legal things like this. If your lawyer gives you advice that contradicts what you are getting here, listen to the lawyer.
  3. Your lawyer may tell you that you have a slam dunk case for compensation. That's great, and do what they tell you. If it's not as clear cut then the best route is probably negotiate. You don't want to be working for this company (it doesn't matter how much you've enjoyed it until now; it's not worth staying somewhere you aren't wanted.) Find out what they would have to pay you for a firing, and tell them you would accept a redundancy offer with compensation of that or a bit less. (By "accept a redundancy offer" I mean that they let you go under terms you agree. This means you are eligible for unemployment benefit if you need it, but it also means you can tell a future employer that you weren't 'fired'.) This will save them the cost and pain of going through a disciplinary process and having to make up crap. For you, you get the money you are due and you don't have to work for them under painful circumstances. You can use the time to look for a new job full time. Things are a bit more complicated if you need the job to stay in Germany, but your lawyer will recommend something.
DJClayworth
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    Note however that copies of "all" your emails to outside the company could be a problem in many cases, as that could be a breach of regulations. You probably need to be a bit more selective. – jcaron Jan 06 '22 at 10:37
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    @jcaron Depending on your job, it could even go past regulatory violations to criminal ones. Even when that's not the case, though, sending company proprietary information to your personal e-mail probably isn't a great idea... especially in a situation like this where your employer is already looking for reason to fire you for cause... that could be the exact reason they need and it would be a rather legitimate one in many cases. – reirab Jan 06 '22 at 16:50
  • I edited the answer so as not to get bogged down in this. – DJClayworth Jan 06 '22 at 16:56
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I suggest that you inform HR of this verbal threat. Since there is no evidence right now that you have done anything that allows them to fire you, a threat "we will search and find a reason to fire you unless you quit" clearly indicates that someone is willing to fabricate evidence against you.

That would put the company in a very bad legal situation if you are fired. So you start a paper trail, and that alone should make HR talk to the person threatening you and advise them not to come up with any false evidence.

gnasher729
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    This does not seem like an answer appropriate to the Law stackexchange, since it does not discuss the legal situation. – Jack Aidley Jan 05 '22 at 12:09
  • It doesn't toally answer the question but it is a valuable point, HR may not be your friend but they are not the friend of Managers whose actions may be illegal either! – deep64blue Jan 05 '22 at 13:38
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    In a company of 11-50 employees (especially at the lower end) it's unlikely there is much distinction between "HR" (if that role actually exists) and whoever is making the threats. – jcaron Jan 05 '22 at 13:59
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    And if there is they are probably not in a position to help. When this happened to me HR was unwilling to go against senior management. – DJClayworth Jan 05 '22 at 14:41
  • This, absolutely. A paper trail. Now. Even if its just a short email, "I wish to note that during our meeting (date) you made a verbal threat that you would search for a pretext to fire me - including painting past acceptable actions badly for the purpose - unless I resigned. I wish to ask you not do this, as it would be unethical, and also probably a crime. I'm sorry to have to write in such terms." CC HR and CC the CEO, or his own manager too. (HR only solve problems for a company, his managers will have a more direct interest if he's acting bad) – Stilez Jan 05 '22 at 23:35
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    HR? HR only exists to protect the company, nothing else. HR is not some kind of neutral mediator. Why would that help? – Peter Mortensen Jan 06 '22 at 14:59
  • @PeterMortensen Exactly! In this case, the OP is on the side of the company. HR is not there to protect a manager who pulls illegal stunts like this. AS jcaron points out, though, some small companies would rather die from lawsuits than listen to their own HR departments. – jpaugh Jan 06 '22 at 16:23
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    @jpaugh I think jcaron's point was that most employers with just a bit over ten employees don't have HR departments, at least not that are meaningfully distinct from the manager(s). Even at the ~70-employee company where I work, HR is one person who also has additional responsibilities. – reirab Jan 06 '22 at 16:32