Notice of Change

In addition to “normal” dismissal, which is aimed at terminating the employment relationship from the outset and is therefore often referred to as termination notice, there is also notice of change. This is regulated in § 2 KSchG. Its primary objective is to change the working conditions. Only in the event that the employee does not accept the offer to change the working conditions does it lead to a termination of the employment relationship.

When is a notice of dismissal necessary?

A notice of termination with notice of change is not necessary if the employer can change the terms of the contract by his instructions. In principle, the employer can unilaterally change activities and issue instructions to the employee within the scope of his right to direct as long as the changes are within the scope of the previously agreed employment contract. Transfers may be possible without notice of dismissal. For all other changes, the employer requires the employee’s consent. If the employee agrees with the contract amendment, the changes can of course be recorded in an amendment contract at any time.

If the employee does not agree with the changes the notice of dismissal is only relevant.

Prerequisites for Notice of Change

The termination by notice of change is a complicated instrument of labour law. Employers have to observe many requirements when giving notice of termination.

In order to emphasize the change request, the employer combines a change offer with a notice of termination. Such a notice of termination must contain two declarations. One is an offer with the desired changes to the employment contract. On the other hand, a termination of the employment relationship, which leads to the termination of the employment relationship if the employee does not agree to the change offer.

It is important to ensure that the offer of change is formulated clearly and comprehensibly. If it is not clear what is to be changed, the termination is invalid for this reason alone. Should a works council exist, it must be consulted. In addition, the notice period must be observed. As well as regulations on special protection against dismissal for severely disabled persons, works councils, etc. Notice must be given in writing.

The most important point is the reason for change. If the Dismissal Protection Act applies, the termination is only effective if there is a reason for termination. There must therefore be a personal, behavioural or operational reason.

Possibilities of the employee

  • Thus, he can accept the offer to change the working conditions. But under the reservation that the change in the working conditions is socially justified. The employee must make this reservation within the period of notice, but at the latest within three weeks of receipt of the notice. At the same time, he may have the social justification of the change in working conditions reviewed by a court. He must observe a legal deadline of three weeks after receipt of the notice of termination. The court will examine whether the change in working conditions is justified. If the court finds that the dismissal is invalid, the employment relationship continues under unchanged conditions.
  • If the employee does not agree with the changes from the outset, the employee can file an action for protection against dismissal. Should the lawsuit be filed in due time and the notice of termination be invalid, the employment relationship continues to exist under unchanged conditions. Where the employee loses, the employment relationship is terminated.
  • He can accept the termination by not reacting to the change of notice. In this case, the employment relationship ends upon expiry of the notice period.