Unfair dismissal claim: how to challenge your dismissal

What is an unfair dismissal claim?

The unfair dismissal claim is a claim for a declaratory judgment before the labour court. You apply for a declaration that your employment has not been terminated by the dismissal (Sec. 4 sentence 1 KSchG). If you win, the employment continues, and your employer must continue to employ and pay you.

The claim can be brought against ordinary and summary dismissals and against a dismissal with an offer of altered terms (Änderungskündigung). It is not a claim for severance. Severance is usually the result of an agreement during the proceedings: the employer pays so that the employment ends and it gets rid of the litigation risk. Only in exceptional cases does the court itself award severance, when it dissolves the employment on application (Sec. 9 and 10 KSchG).

When does protection against dismissal apply?

The Protection Against Dismissal Act (Kündigungsschutzgesetz, KSchG) requires a dismissal to be socially justified, i.e. based on reasons relating to conduct, to the person or to urgent operational requirements (Sec. 1 (2) KSchG). This protection does not apply to everyone, however.

Does the KSchG apply to you? The quick check:

1. Had your employment lasted longer than 6 months when the dismissal was received? (Sec. 1 (1) KSchG)
2. Does your employer normally employ more than 10 employees, excluding trainees? Part-time staff count as 0.5 (up to 20 hours a week) or 0.75 (up to 30 hours a week) (Sec. 23 (1) KSchG).

Yes twice: full protection against dismissal applies. No once: your employer does not need a reason for dismissal within the meaning of the KSchG. For employees who were already employed before 2004 in a business with more than 5 employees, a transitional rule may apply (Sec. 23 (1) sentences 2 and 3 KSchG).

A claim can make sense even without the KSchG. A dismissal is invalid, for example, if it is not in writing (Sec. 623 BGB), if the works council was not consulted (Sec. 102 BetrVG) or if special protection against dismissal has been breached, for example in case of pregnancy (Sec. 17 MuSchG), parental leave (Sec. 18 BEEG) or severe disability without the consent of the Integration Office (Integrationsamt, the authority responsible for severely disabled employees) (Sec. 168 SGB IX). Even during probation and in a small business, the rule is therefore: file a claim within 3 weeks if you want to defend yourself (Sec. 4 sentence 1, Sec. 23 (1) sentences 2 and 3 KSchG).

When is an unfair dismissal claim worthwhile?

Whether a claim is worthwhile depends less on your sense of fairness than on three questions: Does protection against dismissal apply? Does the dismissal have a recognisable error? And what do you want to achieve, keep your job or leave on good terms with severance?

Situation	Protection against dismissal applies?	Typical point of attack	Assessment
Dismissal for operational reasons after several years	yes	loss of the job, social selection	claim often promising, settlement with severance common
Conduct-related dismissal without a prior formal warning	yes	missing warning, proportionality	often challengeable
Dismissal for illness	yes	negative prognosis, balancing of interests, occupational integration management	individual case, often challengeable
Summary dismissal	good cause is examined even in a small business	good cause, 2-week deadline under Sec. 626 (2) BGB	high hurdles for the employer
Dismissal during probation or in a small business	no	form, works council, special protection against dismissal, discrimination	only worthwhile if there is a specific error
Dismissal by email or WhatsApp	irrelevant	missing written form	dismissal invalid
Pregnancy, parental leave, severe disability	irrelevant	missing official consent	often challengeable

Arguments for and against a claim

For a claim	Against a claim
You want to keep your job	You already have a better new job and want to close the matter quickly
The dismissal has a recognisable error of form or reasoning	No protection against dismissal and no recognisable error
You have legal expenses insurance or are a trade union member	Your own lawyer's fees would be higher than any realistic settlement
You want to negotiate severance or better terms for your departure	You do not want to strain your relationship with the employer under any circumstances

Important: the claim keeps all options open. Without a claim, the dismissal is deemed valid after 3 weeks, and your negotiating position is gone.

Deadline: 3 weeks from receipt

The claim must reach the labour court within 3 weeks of receipt of the written notice of dismissal (Sec. 4 sentence 1 KSchG). The dismissal has been received when it comes within your sphere of control and you can be expected to take note of it under normal circumstances, for example when it is put in your letterbox. Holiday or illness do not stop the deadline. If you missed the deadline through no fault of your own, you can apply for late admission of the claim within 2 weeks after the obstacle has been removed, at the latest 6 months after the end of the missed deadline (Sec. 5 KSchG). Everything about the start of the deadline, how to calculate it and exceptions is explained in our guide on the deadline for an unfair dismissal claim.

Example: The dismissal is put in your letterbox on Friday, 20 November 2026. The deadline for the claim ends on Friday, 11 December 2026.

Procedure of an unfair dismissal claim

Filing the claim

The competent court is the labour court in whose district your employer has its registered office or in which you usually work (Sec. 48 (1a) ArbGG). You can file the claim yourself in writing or have it recorded at the legal applications office (Rechtsantragstelle) of the labour court. If you have a lawyer, the lawyer files the claim electronically. You do not have to pay an advance on court costs before the labour court (Sec. 11 GKG).

Conciliation hearing

Unfair dismissal proceedings must be dealt with as a priority. The conciliation hearing should take place within 2 weeks of the claim being filed (Sec. 61a (2) ArbGG); in practice, it usually takes place 2 to 6 weeks after filing. The hearing is conducted by the presiding judge alone. The judge discusses the case and explores whether an agreement is possible. Many proceedings end here with a settlement.

Chamber hearing and judgment

If conciliation fails, the court schedules a chamber hearing. The chamber consists of the professional judge and one lay judge each from the employer and employee side. Beforehand, the parties exchange written submissions: the employer must set out and prove the reasons for dismissal (Sec. 1 (2) sentence 4 KSchG). A settlement is still possible at the chamber hearing. In disputes about the existence of the employment, the judgment can be appealed to the Regional Labour Court (Landesarbeitsgericht) (Sec. 64 (2) (c) ArbGG).

How long do the proceedings take?

If the proceedings end at the conciliation hearing, they are often over within a few weeks. If the chamber has to decide, the first instance usually takes several months, depending on the court. An appeal extends the proceedings considerably.

How does the employer react to an unfair dismissal claim?

For the employer, the claim means a financial risk: if it loses, it must continue to employ you and pay your salary for the entire duration of the proceedings. Typical reactions are:

• Settlement offer with severance: the most common reaction, often before or at the conciliation hearing.
• Better departure terms: a longer notice period, release from work on full pay, a good reference, compensation for holiday and overtime.
• Withdrawal of the dismissal: The employer cannot withdraw a dismissal unilaterally. It can, however, offer to continue the employment. Whether you accept is your decision.
• Further dismissal: Some employers dismiss again as a precaution, for example without notice and alternatively with notice. A separate 3-week deadline runs against every further dismissal.
• Offer of employment during the proceedings: You are asked to keep working until the judgment to reduce the risk of back pay.

Disadvantaging you because you exercise your right to file a claim is prohibited (Sec. 612a BGB).

Severance through an unfair dismissal claim

Employees are only entitled to severance in a few cases, for example if, in a dismissal for operational reasons, the employer expressly offers severance under Sec. 1a KSchG in case you do not file a claim, or if a social plan provides for it. Severance is usually a matter of negotiation.

In practice, half a gross monthly salary per year of service serves as a guide. Sec. 1a (2) KSchG also names this factor. The actual amount depends on how vulnerable the dismissal is, how long you have been with the business and how urgently the employer wants an agreement. If the court dissolves the employment on application, severance amounts to up to 12 monthly earnings, and for older employees with long service up to 15 or 18 (Sec. 10 KSchG).

Example calculation: €3,500 gross, 8 years of service. Rule of thumb: 0.5 x €3,500 x 8 = €14,000 gross. If the dismissal is obviously defective, more may be possible; with a well-founded dismissal, less. You can calculate your own figures with the severance calculator [REDAKTION: Link auf abfindungsrechner, sobald veröffentlicht].

Severance is taxable; reduced taxation under the one-fifth rule may apply in some circumstances (Sec. 34 (1), (2) no. 2 EStG). Social security contributions are usually not payable. If the employment ends through a settlement before your notice period expires, your entitlement to unemployment benefit may be suspended for a time because of the severance (Sec. 158 SGB III).

Are you still employed during the claim?

Yes and no. The claim does not stop the dismissal: after the notice period expires, you usually no longer have to work and initially receive no salary either. Whether the employment has really ended is decided by the court.

• Salary: If you win, the employer must pay your salary for the period after the notice period expired, because it was in default of acceptance (Sec. 615 BGB). What you earn elsewhere during this time, unemployment benefit and what you maliciously failed to earn are offset (Sec. 11 KSchG).
• Continued employment: If the works council properly objected to the ordinary dismissal, you can demand to continue to be employed until the proceedings are concluded (Sec. 102 (5) BetrVG). Without a works council, a general right to continued employment may arise after winning at first instance.
• Unemployment benefit: Register as a jobseeker at the latest 3 months before the employment ends, otherwise within 3 days of learning of the end (Sec. 38 (1) SGB III). After the end, you can draw unemployment benefit even while the claim is pending (Sec. 157 (3) SGB III).
• New job: You may take up new work during the claim. If you win, you can declare within one week after the judgment becomes final that you do not want to continue the old employment (Sec. 12 KSchG).

Unfair dismissal claim with or without a lawyer?

There is no obligation to be represented by a lawyer at first instance before the labour court (Sec. 11 (1) ArbGG). You can therefore file the claim yourself, for example through the legal applications office. Only before the Regional Labour Court must you be represented (Sec. 11 (4) ArbGG).

Without a lawyer, you save lawyer's fees but bear the risks yourself: you have to assess the employer's reasons for dismissal, respond to its written submissions, challenge further dismissals in time and negotiate severance without knowing the usual room for manoeuvre. The employer is usually represented by a lawyer.

Structure of a statement of claim

The statement of claim must contain certain information (Sec. 253 ZPO). If you file the claim yourself, it should include at least the following:

1. Name of the labour court
2. Your details and the employer's details with an address for service, for companies with their representative
3. Application: for a declaration that the employment has not been terminated by the dismissal dated [date], received on [date]
4. Start of the employment, job, gross monthly salary
5. Number of employees, if known, and whether there is a works council
6. Date of receipt of the dismissal, copy of the dismissal as an enclosure
7. Your signature

Checklist: what you need now

• Original letter of dismissal with the envelope
• Note of the day and manner of receipt
• Employment contract and amendment agreements
• Your most recent payslips
• Formal warnings and correspondence relating to the dismissal
• Evidence of special protection against dismissal (maternity record, severely disabled person's ID card, application for parental leave)
• Legal expenses insurance policy, if you have one

What does an unfair dismissal claim cost?

An unfair dismissal claim involves three blocks of costs: your lawyer's fees, the court costs and your own expenses, such as travel to the hearing. All amounts depend on the value in dispute.

Who pays the costs? (Sec. 12a ArbGG)

A special rule applies at first instance before the labour court: each party bears its own lawyer's fees, regardless of the outcome. Even if you win, the employer does not pay your lawyer, and you do not pay its lawyer if you lose (Sec. 12a (1) sentence 1 ArbGG). Your loss of time is not compensated either. Your lawyer must inform you of this rule before accepting the mandate (Sec. 12a (1) sentence 2 ArbGG). The rule also applies to lawyer's fees incurred before the proceedings.

The court costs, on the other hand, are borne by the losing party, proportionately in case of partial success. From the second instance, the general rules apply: whoever loses also pays the other side's lawyer (Sec. 91 ZPO).

Value in dispute: how it is calculated

In an unfair dismissal claim, the value in dispute is at most the pay for one quarter of a year (Sec. 42 (2) sentence 1 GKG), in practice usually 3 gross monthly salaries. A pro-rata Christmas or holiday bonus may be included. If further claims are brought in the same proceedings, such as outstanding wages or a reference, the value increases. Severance is not added to the value in dispute (Sec. 42 (2) sentence 1 half-sentence 2 GKG).

Cost table by gross salary

At first instance, lawyer's fees typically consist of a 1.3 procedural fee, a 1.2 hearing fee and, in the case of a settlement, a 1.0 settlement fee, each based on the value in dispute, plus the flat-rate expense allowance (20% of the fees, at most €20) and 19% VAT (no. 3100, 3104, 1000 and 1003, 7002, 7008 VV RVG). If the proceedings end with a judgment, a 2.0 court fee is charged (no. 8210 KV GKG).

Gross monthly salary	Value in dispute (assumption: 3 salaries)	Lawyer's fees with settlement	Lawyer's fees with judgment	Court costs with judgment
€2,500	€7,500	€2,243.75	€1,609.48	€476.00
€3,000	€9,000	€2,491.56	€1,786.49	€521.00
€3,500	€10,500	€2,968.46	€2,127.13	€627.00
€4,000	€12,000	€2,968.46	€2,127.13	€627.00
€5,000	€15,000	€3,197.53	€2,290.75	€688.00
€6,000	€18,000	€3,426.61	€2,454.38	€749.00

Assumptions: value in dispute equal to 3 gross monthly salaries, no further applications; one client; at least one hearing (conciliation hearing or chamber hearing) is attended; "settlement" means a court settlement on the entire dispute without additional value, "judgment" means a contested judgment without a settlement; no crediting of an out-of-court business fee. Lawyer's fees per party, gross including the flat-rate expense allowance of €20 and 19% VAT. The court fee is charged only once; with a judgment, it is borne by the losing party, proportionately in case of partial success. Calculated using the tables in Annex 2 to the RVG and Annex 2 to the GKG, as of November 2026.

Court costs: settlement, judgment, withdrawal of the claim

• Settlement: If the proceedings end with a court settlement, the court fee is waived entirely (preliminary note 8 KV GKG). This does not apply if the settlement only resolves part of the dispute.
• Judgment: The full 2.0 fee is charged. It is borne by the losing party, proportionately in case of partial success.
• Withdrawal of the claim: If you withdraw the claim before a contested hearing, the fee is waived, provided no default judgment has been issued (no. 8210 (2) KV GKG). After a contested hearing, it may be reduced to 0.4 on withdrawal (no. 8211 KV GKG). You still pay your lawyer.

Filing a claim without a lawyer: what do you save, what do you risk?

Without a lawyer, only the court costs are incurred at first instance, and they are waived with a settlement. If the proceedings end with a judgment and you lose, you only pay the court fee, not the employer's lawyer. The financial risk is therefore manageable. The price: you conduct the proceedings and the severance negotiations on your own against an employer who is usually represented by a lawyer.

Legal expenses insurance, trade union, legal aid

Route	What is covered	What to watch out for
Legal expenses insurance with employment law cover	usually lawyer's fees and court costs, less the excess	waiting period and confirmation of cover, insured event after the start of the contract
Trade union	legal protection for members, often through its own lawyers	membership usually needed for some time before the dispute
Legal aid (Prozesskostenhilfe)	court costs and your own lawyer, in full or in instalments	low income and assets, sufficient prospects of success, not frivolous (Sec. 11a ArbGG, Sec. 114 et seq. ZPO)
Paying yourself	your own lawyer's fees, court costs only with a judgment	know the costs in advance, agree a fixed price

Recht 24/7 works with all legal expenses insurers. If your insurer confirms cover, we will, if you wish, bill the claim proceedings directly to the insurer.

Is the claim financially worthwhile?

Compare your expected own costs with realistic severance. At €3,500 gross and 8 years of service, the rule of thumb gives €14,000 gross severance. Your own lawyer's fees at a value in dispute of €10,500, at €2,968.46 with a settlement and €2,127.13 with a judgment (assumptions as in the cost table), are well below that. The shorter your length of service and the weaker the points of attack, the tighter the calculation becomes. If you have legal expenses insurance, it hardly matters.

Deducting costs for tax purposes

Lawyer's fees and court costs for an unfair dismissal claim may be deductible as income-related expenses against income from employment (Sec. 9 (1) sentence 1 EStG). Keep the invoices.

Fixed price at Recht 24/7

At Recht 24/7, the written review of your dismissal costs a fixed price. It includes an assessment of the prospects of success, a severance check, a recommendation with a deadline plan and follow-up questions on the result. If the claim is worthwhile, we draft the statement of claim, file it in time and represent you throughout Germany, at a fixed price agreed in advance. If it is not worthwhile, we tell you so in writing, and you pay only the fixed price for the review.

Prospects of success and typical employer mistakes

There is no reliable success rate for unfair dismissal claims; every case depends on its circumstances. Common points of attack are:

• Errors of form: The dismissal is not in writing or not signed by an authorised person. If a representative does not present an original power of attorney, you can reject the dismissal without delay (Sec. 174 BGB).
• Wrong notice period: The notice period increases with length of service up to 7 months (Sec. 622 (2) BGB). Details are in our guide on notice periods for employees; the notice period calculator determines your last working day [REDAKTION: Link auf kuendigungsfrist-rechner, sobald veröffentlicht].
• Defective social selection: In dismissals for operational reasons, the employer must take into account length of service, age, maintenance obligations and severe disability (Sec. 1 (3) KSchG).
• Missing formal warning: A conduct-related dismissal usually requires a prior valid formal warning.
• No or defective consultation of the works council: A dismissal without consultation is invalid (Sec. 102 (1) sentence 3 BetrVG).
• Breach of special protection against dismissal: Pregnant women, parents on parental leave, severely disabled people and works council members are specially protected.

Questions outside the dismissal, for example on formal warnings, the employment contract or a reference, are answered through written advice from our employment lawyer, also at a fixed price.