This is how you get out of your employment contract quickly

It was nice for years, but then suddenly the air is gone. Since the restructuring of her old department, Sabine Franke has known that she wants to change jobs. She worked for a medium-sized communications agency for ten years. But now she’s tired of going to work on Mondays and just wants to get away. “The time is ripe for something new,” explains the key account manager. After a short search, she also gets an exciting offer.

Her experience and many years of cooperation with major industrial customers are valuable arguments for the in-house agency of a group to hire her. The only catch is that the position must be filled within a month at the latest. However, your notice period is three months. Many an employee who is about to change jobs feels like her.

However, Franke is lucky: her employer lets her go and agrees to a termination agreement. “I’m glad that my boss doesn’t stand in the way of my decision,” she explains. However, not every working person experiences this concession. A termination agreement is actually the most common way to get out of an employment relationship early. Supervisors who can compensate for the termination and understand it as a completely normal process in professional life usually agree to the agreement.

However, it is different for supervisors who are afraid of not being able to fill the suddenly vacant position quickly enough. Or worse, who take the job change personally and want revenge on the employee. True to the motto: “You can walk, but not without a lesson!”. In a situation like this, you get stuck faster than you think.

For many employees, the deadline can then become a running of the gauntlet and, in case of doubt, can even cost them their dream job. But there are other ways to end the employment relationship faster than agreed. “Termination periods can also be ineffective,” says Barbara Geck, specialist lawyer for labor law and partner at the law firm Bird & Bird. The statutory period of notice for employees is generally four weeks.

Depending on length of service, however, longer periods can also be agreed in accordance with Section 622 (2) of the German Civil Code. This in turn must be based on reciprocity. If the employer reserves the right to terminate the contract with one month’s notice and at the same time demands that the employee observe a period of three months, the longer period is ineffective.

“The employee must not be bound to the employment relationship any longer than the employer,” explains Geck. In order to determine your own notice period, it is often necessary to look at the employment contract as well as the law. However, notice periods can also be ineffective if they are very long and thus represent an unreasonable obstacle to termination.

For example, the Federal Labor Court in 2017 (judgment of October 26, 2017 – 6 AZR 158/16) held that a notice period of three years in a standard employment contract may be unfair because it ultimately makes it impossible for the employee to give notice to change jobs. Exactly what is inappropriate ultimately depends on the position and specific agreements.

If, for example, an extraordinary salary increase is promised in return for the long period of notice, this can have an impact on the decision. “Especially for high-ranking executives, notice periods of nine months or even one year are not unusual,” says the lawyer. Anything beyond that is considered improper.

If notice periods have been agreed in a legally correct manner, an employee can still rely on the possibility of extraordinary termination without notice in case of doubt. Just like the employer, an employee can immediately withdraw from an employment contract if certain irregularities take place. However, the requirements are high and if in doubt, the employee must first warn the boss.

“As a rule, the supervisor must be given the opportunity to eliminate the reason for the termination before the extraordinary termination is pronounced,” reveals Barbara Geck. In practice, various scenarios can be decisive: for example, a breach of the employment obligation through an unjustified suspension, the deprivation of essential duties and authority to an extent that is offensive or even offensive, wage arrears or the employer’s failure over a longer period of time to pay social security contributions.

Reasons for termination can also result from repeated breaches of contract by the employer. Examples include the arrangement of overtime that exceeds the legal maximum or illegal video surveillance.

The fact that Sabine Franke was able to come to an agreement with her boss makes her happy. Because if in doubt, she would even have considered simply not appearing at work anymore. Quite a few employees then take sick leave. However, working elsewhere within the notice period can be associated with considerable financial risks. Anyone who simply stays away from work and works elsewhere can be subject to claims for damages or serious contractual penalties.

If the employee simply starts somewhere else, the old employer can have the court prohibit this with a temporary injunction. The new employer is thus included in the dispute and will terminate the employment relationship in case of doubt. “It is strongly discouraged to take such a step,” emphasizes Barbara Geck.