Conduct-related dismissal: requirements, examples and your rights

What is a conduct-related dismissal?

Your employer bases a conduct-related dismissal on misconduct on your part. It is one of the three grounds recognised by the Protection Against Dismissal Act: reasons relating to the person, to conduct and to urgent operational requirements (Sec. 1 (2) sentence 1 KSchG).

This means conduct that you can control: you are repeatedly late, refuse to do work or insult colleagues.

The focus is on the future: instead of the punishment principle (Sanktionsprinzip), the prognosis principle (Prognoseprinzip) applies. A conduct-related dismissal is justified if proper performance of the contract free of disruption can no longer be expected in future and further breaches of duty can only be countered by ending the employment (Federal Labour Court (Bundesarbeitsgericht, BAG), judgment of 10 June 2010, 2 AZR 541/09, para. 28).

A conduct-related dismissal can be given as an ordinary dismissal, i.e. with a notice period, or as an extraordinary dismissal, usually without notice. This guide mainly covers the ordinary variant.

Conduct-related, personal and operational dismissal compared

The three grounds differ in where the cause lies and whether you are to blame for anything.

Feature	conduct-related	personal	operational
Cause	your controllable conduct	your characteristics or abilities	decision by the employer, the job ceases to exist
Fault required	yes, intent or negligence	no	no
Formal warning beforehand	usually yes	usually no	no
Outlook for the future	further breaches to be expected	you can no longer do the work in future	need ceases permanently
Social selection among colleagues	no	no	yes (Sec. 1 (3) KSchG)
Suspension of unemployment benefit	possible (Sec. 159 (1) sentence 2 no. 1 SGB III)	usually not, except where the loss was culpably caused, for example of the driving licence	usually no, no conduct in breach of the employment contract
Severance entitlement under Sec. 1a KSchG	no	no	yes, with a notice in the letter of dismissal and without a claim
Example	repeated lateness after a formal warning	professional driver loses the driving licence	department is closed

The line is not always sharp. Two typical borderline cases:

• Alcohol: Drinking at work despite a ban is a breach of conduct. In the case of addiction, a dismissal for personal reasons is more likely to be considered.
• Poor performance: Anyone who performs less than they could breaches their duties. Anyone who can no longer do more despite making an effort does not breach any duty.

On the third variant: guide on redundancy dismissal.

Requirements: when is a conduct-related dismissal valid?

Your employer only needs a reason if the Protection Against Dismissal Act applies: your employment has existed for more than 6 months (Sec. 1 (1) KSchG), and the business normally employs more than 10 employees, with part-time staff counted proportionately (Sec. 23 (1) KSchG). How they are counted is explained in our guide on ordinary dismissal.

The labour courts then examine four steps. If one is missing, the dismissal is socially unjustified and invalid.

1. Considerable breach of duty

You must have breached a duty arising from the employment: the work itself (absence, lateness, refusal to work) or an ancillary duty, such as consideration for the employer's interests, reporting sick in good time or the rules of the business. Trivial matters are not enough.

2. Unlawful and culpable

The breach must not be justified and must have been committed intentionally or negligently. If you are late because the S-Bahn (suburban train) is not running due to a strike, you are not at fault.

The employer must prove the facts on which the dismissal is based (Sec. 1 (2) sentence 4 KSchG). However, you must set out a justification or excuse in concrete terms; the employer must then refute it.

3. No milder means: formal warning and negative prognosis

The dismissal must be the last resort. In the case of controllable conduct, the Federal Labour Court assumes that even the threat of consequences can change your conduct. Both ordinary and extraordinary dismissal therefore regularly require a formal warning. If you commit another breach after a proper formal warning, further disruption is usually to be expected (BAG, 2 AZR 541/09, para. 36).

Other milder means can be a transfer or a dismissal with new terms, for example if the dispute is tied to a particular colleague. What a valid formal warning must contain is explained in our guide on formal warnings at work.

4. Balancing of interests

Finally, the court weighs the employer's interest in ending the employment against your interest in keeping your job. As a rule, the factors to be taken into account are the seriousness and effects of the breach of duty, the degree of fault, a possible risk of repetition, and the length of the employment and whether it has run without disruption (BAG, 2 AZR 541/09, para. 34).

How strong this effect can be is shown by the case of a cashier who had redeemed two bottle deposit receipts belonging to others, worth €1.30 in total, for herself. The Federal Labour Court considered this a reason for dismissal in itself, but held that neither the summary dismissal nor the alternative ordinary dismissal was valid. After more than thirty years of work without complaint, a formal warning would have been sufficient (BAG, 2 AZR 541/09, paras. 20, 31, 32, 48, 58).

Grounds and examples for a conduct-related dismissal

There is no fixed list; the court decides in the individual case. Typical cases and how they are usually classified.

Conduct	Typical classification	What matters
Repeated lateness	ordinary dismissal after a formal warning	frequency, duration, consequences for the business
Unexcused absence	usually only after a formal warning	duration, repetition
Refusal to work	usually only after a formal warning	whether the instruction was lawful
Late sick notification or sick note (AU-Bescheinigung)	only after a formal warning	repetition despite a formal warning
Private use of internet or phone	usually only after a formal warning	ban in the business, extent
Breach of a ban on alcohol or smoking	usually only after a formal warning	danger to others, safety area
Insulting colleagues, superiors or customers	depending on seriousness, after a formal warning or without one	wording, occasion, context
Theft or embezzlement at the employer's expense	may be sufficient without a formal warning, even for small amounts	balancing of interests, length of employment
Working time fraud, false expense claims	often sufficient without a formal warning	intent, extent
Sexual harassment, assault	often sufficient without a formal warning	type, seriousness, repetition
Competing with the employer during employment	may be sufficient	extent, damage

Conduct in your free time is in principle your own business. It only becomes relevant to a dismissal if it affects the employment, for example if you poach the employer's customers in your free time.

Suspicion instead of proof: Under strict conditions, even a strong suspicion of a serious breach of duty can justify a dismissal; it is an independent ground for dismissal alongside the proven act (BAG, 2 AZR 541/09, para. 23). More on this in our guide on summary dismissal.

Conduct-related dismissal without a formal warning: is it possible?

Yes, but only by way of exception. The Federal Labour Court names two cases in which a formal warning is not necessary (BAG, 2 AZR 541/09, para. 37):

1. No improvement to be expected: It is clear in advance that you will not change your conduct even after a formal warning, for example because you announce this.
2. Particularly serious breach: It is obviously out of the question that the employer will tolerate it, and this is also recognisable to you.

This also applies to criminal offences against the employer's property. There are no "absolute" grounds for dismissal there either (BAG, 2 AZR 541/09, para. 38). The court sees the principle confirmed by statute in Sec. 314 (2) BGB, which only permits termination for a breach of duty after an unsuccessful formal warning, unless special circumstances justify immediate termination (para. 37).

The formal warning must be relevant, i.e. concern a similar breach; a formal warning for lateness does not support a dismissal for an insult. If the employer issues a formal warning for a breach, it can usually no longer dismiss you for exactly that breach.

Ordinary or without notice: notice period and 2-week deadline

For an ordinary conduct-related dismissal, the normal notice period applies. Without a collective agreement or a different arrangement, this is 4 weeks to the 15th or to the end of the month; if the employer dismisses you, the period increases with the length of employment up to 7 months to the end of the month after 20 years (Sec. 622 (1) and (2) BGB). All periods: guide on notice periods for employees.

An extraordinary conduct-related dismissal usually ends the employment immediately. It requires good cause that makes it unreasonable for the employer to wait even until the end of the notice period (Sec. 626 (1) BGB). In addition, it must be given within 2 weeks after the person entitled to dismiss has learned of the relevant facts (Sec. 626 (2) BGB). This 2-week deadline does not apply to an ordinary dismissal. However, waiting a long time can count against the dismissal.

Employers often dismiss without notice and "alternatively" with notice; you must then challenge both. More in our guide on extraordinary dismissal.

When is a conduct-related dismissal invalid?

Check these points:

• No sufficient reason: The breach is not considerable, not proven or not culpable (Sec. 1 (2) KSchG).
• No relevant formal warning: There is no formal warning for a similar breach, although no exception applies.
• Form: on paper with a handwritten signature, not by email or WhatsApp (Sec. 623 BGB).
• Works council: It must be consulted beforehand and informed of the reasons, otherwise the dismissal is invalid (Sec. 102 (1) BetrVG).
• Special protection against dismissal: For severely disabled persons, the employer needs the prior consent of the Integration Office (Integrationsamt, the authority responsible for severely disabled employees) (Sec. 168 SGB IX) if the employment has existed for more than 6 months on receipt (Sec. 173 (1) no. 1 SGB IX). Works council members can only be dismissed for good cause and with the consent of the works council or a court decision replacing it; an ordinary conduct-related dismissal is excluded (Sec. 15 (1) KSchG). Anyone who has made a publicly certified declaration of their intention to set up a works council and is taking steps to prepare for it is temporarily protected specifically against dismissals for personal and conduct-related reasons (Sec. 15 (3b) KSchG). Further groups are listed in our guide on ordinary dismissal.
• Victimisation: The "misstep" was that you exercised your rights in a permissible way, for example by claiming your pay (Sec. 612a BGB).

The reason does not have to be stated in an ordinary dismissal, but the employer must prove it in the proceedings. In the case of an extraordinary dismissal, the employer must inform you of it in writing without delay if you ask (Sec. 626 (2) sentence 3 BGB).

Dismissal for personal reasons: requirements and examples

In a dismissal for personal reasons, the reason lies in you, but not in misconduct: you can no longer do your work in future, either fully or in part. Fault plays no role. Your employer only needs such a reason if the Protection Against Dismissal Act applies (Sec. 1, 23 KSchG).

Examination in four steps

Here too, the courts examine in stages:

1. Negative prognosis: It is to be expected that you will not be able to fulfil your duties in future either.
2. Considerable impairment: This considerably disrupts the business, for example through absences that cannot be bridged or through high costs.
3. No continued employment: There is no vacant position in the business or company in which the problem has no effect, not even after reasonable retraining or on changed terms if you agree (Sec. 1 (2) sentences 2 and 3 KSchG).
4. Balancing of interests: The burden can no longer reasonably be expected of the employer, also taking into account your length of service and the previous course of the employment.

Typical examples

• Long or frequent illness: the most common case, with its own guide on dismissal due to illness. If you were unfit for work, or partly unfit for work, for more than 6 weeks within one year, either without interruption or repeatedly, your employer must offer BEM (return-to-work management, betriebliches Eingliederungsmanagement) (Sec. 167 (2) SGB IX). If you are only dismissed during sick leave for another reason: dismissal during sick leave.
• Loss of a licence: A professional driver loses the driving licence, a doctor's licence to practise (Approbation) is revoked; the same applies to a missing work permit.
• A longer prison sentence that prevents you from working for a long time.
• Permanent poor performance that is due to a lack of ability.

Formal warning before a dismissal for personal reasons?

As a rule, no, because a formal warning is meant to change controllable conduct. Exceptions are mixed cases, for example an addiction where therapy is refused.

Benefit suspension and unemployment benefit after a conduct-related dismissal

If you gave cause for the dismissal through conduct in breach of your employment contract and thereby caused your unemployment intentionally or through gross negligence, without good cause, your entitlement to unemployment benefit is suspended for a period (benefit suspension, Sperrzeit) (Sec. 159 (1) sentence 1 and sentence 2 no. 1 SGB III).

Case	Duration	Provision
Normal case	12 weeks	Sec. 159 (3) sentence 1 SGB III
Employment would have ended anyway within 6 weeks of the event	3 weeks	Sec. 159 (3) sentence 2 no. 1 SGB III
Employment would have ended anyway within 12 weeks, or 12 weeks would be a particular hardship	6 weeks	Sec. 159 (3) sentence 2 no. 2 SGB III
Registering as a jobseeker too late	1 additional week	Sec. 159 (6) SGB III

With a 12-week suspension, the benefit period is also shortened, by at least a quarter (Sec. 148 (1) no. 4 SGB III). In the case of a dismissal for personal reasons, there is usually no conduct in breach of the employment contract. It is different if you culpably caused the loss of an ability during the employment, for example the withdrawal of your driving licence as a professional driver (technical instructions (Fachliche Weisungen) of the Federal Employment Agency (Bundesagentur für Arbeit) on Sec. 159 SGB III, FW 159.1.1.1).

What you can do:

• Register in time: as a jobseeker at the latest 3 months before the end, or, if there is less time, within 3 days of learning of it, even if you file a claim (Sec. 38 (1) SGB III).
• Do not let the allegation stand: A settlement often provides that the employer no longer maintains the allegation. Whether the employment agency (Agentur für Arbeit) then refrains from imposing a benefit suspension is its own decision; it is not bound by a settlement (technical instructions of the Federal Employment Agency on Sec. 159 SGB III, FW 159.1.1.1 (1)). A termination agreement can itself trigger a benefit suspension, because you then take part in ending the employment (Sec. 159 (1) sentence 2 no. 1 SGB III).

Severance for a conduct-related dismissal

You have no statutory entitlement; Sec. 1a KSchG only applies to a dismissal for operational reasons with a notice in the letter. There are nevertheless two routes:

• Settlement: Many proceedings end with an agreement. The amount depends on how well the employer can prove the allegation and how high its risk of having to pay back wages is.
• Dissolution by the court: If the dismissal is invalid but you cannot reasonably be expected to continue the employment, the court dissolves the employment on your application and orders the employer to pay appropriate severance (Sec. 9 (1) KSchG). It amounts to up to 12 monthly earnings, and for older employees with long service up to 15 or 18 (Sec. 10 KSchG). The same applies accordingly to an unjustified extraordinary dismissal (Sec. 13 (1) sentence 3 KSchG).

Guide values and sample calculations are in our guide on severance by years of service.

Received a conduct-related dismissal: what to do now

1. Note the day of receipt and enter the 3-week deadline. If you want to assert that the dismissal is invalid, your claim must reach the labour court (Arbeitsgericht) within 3 weeks of receipt (Sec. 4 sentence 1 KSchG). This also applies in the first 6 months, in a small business (Sec. 23 (1) sentences 2 and 3 KSchG) and to a summary dismissal (Sec. 13 (1) sentence 2 KSchG). If you miss the deadline, the dismissal is deemed valid from the outset (Sec. 7 KSchG). The court only admits a late claim if you were prevented from filing despite taking all reasonable care; you must make the application within 2 weeks after the obstacle has been removed (Sec. 5 KSchG). How to calculate it: deadline for an unfair dismissal claim.
2. Collect formal warnings and your own account. Is there an earlier formal warning for the same breach, and are the allegations correct? Write down what happened from your point of view, with dates, witnesses and evidence such as a medical certificate.
3. Register as a jobseeker (Sec. 38 (1) SGB III), even if you file a claim.
4. Do not sign anything hastily: no termination agreement, no settlement receipt (Ausgleichsquittung), no waiver of the right to bring a claim.
5. Keep your reference in mind. You are entitled to a written reference, on request also covering performance and conduct, worded clearly and comprehensibly (Sec. 109 GewO). It is often also dealt with in a settlement. More: wording in employment references.

Even if the chances are low, a claim can make sense because of the benefit suspension, the reference and the termination date. Procedure and costs: guide on the unfair dismissal claim.

For employers: checklist before a conduct-related dismissal

Check before giving notice:

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