A Kündigungsschutzklage — literally a “protection-against-dismissal claim” — is the formal action you file at the competent labor court (Arbeitsgericht) to have the dismissal declared void. It is the only way to keep your employment alive after the employer has issued a written dismissal, and the only practical path to a meaningful severance.
What you’re asking the court to decide
The claim asks the labor court to find that the employment relationship has not been terminated by the dismissal in question. If you win, the dismissal is treated as if it had never been issued — your employment continues, and the employer owes you all wages from the dismissal date forward as Annahmeverzugslohn under § 615 BGB. If you lose, the dismissal stands and the employment ended on the date the notice period ran out.
In practice, however, only a small minority of Kündigungsschutzklagen actually go to judgment. Over 70 % of them end at the Gütetermin (conciliation hearing) with a Vergleich — a court-recorded settlement in which the employer pays a severance and the employee accepts the end of employment with a defined Beendigungsdatum. This is the German labor-law reality: the Kündigungsschutzklage is both a legal weapon and a negotiation tool.
When the Kündigungsschutzgesetz applies
The substantive protection of the Kündigungsschutzgesetz (KSchG) only kicks in if both of the following are true at the time of the dismissal:
- You have been employed by the same employer for more than six months without interruption (§ 1(1) KSchG); and
- Your employer regularly employs more than 10 full-time-equivalent staff in Germany (§ 23(1) KSchG; part-timers count proportionally — typically 0.5 for ≤20 h/week, 0.75 for ≤30 h/week, 1.0 for >30 h/week).
If both apply, your employer must justify the dismissal under one of three headings: operational reasons (betriebsbedingt), personal reasons (personenbedingt), or behavioural reasons (verhaltensbedingt). If the employer cannot, the dismissal is void.
The “more than 10 staff” threshold is counted at the time of the dismissal and is a hard cliff: an employer with exactly 10 full-time staff plus 2 part-time staff at 20 hours each is at 10 + 1.0 = 11 FTE and the KSchG applies. The same employer with 1 part-timer at 20 h/week is at 10.5 FTE — and the KSchG does NOT apply (only > 10 counts, not ≥). We routinely audit the FTE count in close cases.
If the KSchG doesn’t apply, can I still file?
Yes — and you usually should. Even outside the KSchG, a dismissal can be void on other grounds. These include:
- Form defects under § 623 BGB. No wet-ink signature, wrong signatory, electronic-only dismissal — all void.
- Discrimination (AGG). A dismissal motivated by ethnicity, religion, age, sex, disability, or sexual orientation is void and triggers AGG damages on top.
- Special-protection categories. Pregnancy (§ 17 MuSchG), parental leave (§ 18 BEEG), severe disability (§ 168 SGB IX), works-council membership (§ 15 KSchG), federal-volunteer service. All require government / works-council consent before any dismissal.
- Sittenwidrigkeit / Treu und Glauben. A dismissal that is grossly unfair (e.g. immediately after a whistleblower disclosure, retaliation for legitimate complaints, dismissal of a long-tenured employee for trivial reasons) can be void under §§ 138, 242 BGB.
- Defective works-council consultation under § 102 BetrVG — applies even in small-business contexts where a works council exists.
Filing the claim is also the only way to start negotiations. Most small-business dismissals settle with a smaller severance — typically 1–2 monthly salaries flat — even though the merits are weaker on paper.
How the procedure runs
- Filing. We draft the Klageschrift and file it electronically at the competent Arbeitsgericht — usually the court for the location where you regularly perform your work (§ 48(1a) ArbGG). For remote-work setups, jurisdiction is the location of the employer’s place of business unless the contract names a different location.
- Conciliation hearing (Gütetermin). Within 4–8 weeks a single judge invites both sides to attempt settlement. The vast majority of cases settle here, typically with a severance payment in exchange for ending the relationship. The Gütetermin is informal — no witnesses, no evidence presentation, just direct conversation between the lawyers under the judge’s guidance.
- Schriftsatzfrist. If no settlement is reached, the court sets a deadline (typically 4–6 weeks) for the employer to file its Klageerwiderung (defence) and for the employee to file the Replik (reply).
- Chamber hearing (Kammertermin). Months later, a chamber of one professional judge and two lay judges (one nominated by the employer side, one by the employee side) hears witnesses, reviews documents, and decides the case on the merits. Most remaining cases still settle on the courthouse steps, often at higher severance.
- Judgment. Either side may appeal to the Landesarbeitsgericht within one month under § 64 ArbGG. The LAG hears the case afresh on factual and legal grounds. From the LAG, a further appeal to the Bundesarbeitsgericht (Revision) is possible only with leave (Zulassung) granted by the LAG or directly by the BAG.
What it costs
The labor court does not charge any filing fee to the employee up front. Each side pays its own lawyers in the first instance regardless of the outcome under § 12a ArbGG (the “American rule” applies only at the Arbeitsgericht; at LAG and BAG, normal loser-pays applies).
If you have legal-protection insurance (Rechtsschutzversicherung) with an employment-law module, the insurer typically covers your lawyer’s fees minus the agreed deductible (usually €150–€300). Without insurance, the RVG fee for a first-instance Kündigungsschutzklage based on a €5,000/month salary is roughly €1,800–€2,500 plus VAT. See our full Costs & Fees page.
Severance — the practical reality
The customary anchor for severance in labor-court settlements is § 1a KSchG‘s formula: 0.5 × gross monthly salary × completed years of service (the Regelabfindung). The real number is driven by:
- The strength of the dismissal-protection case (procedural defects + substantive defects move it up).
- The notice period still to run (each remaining month is leverage — the employer would otherwise have to pay you).
- Special-protection categories (pregnancy, parental leave, severe disability, works-council) — typically 1.0–2.0 monthly salaries per year of service.
- The employer’s time pressure (M&A, restructuring deadlines, replacement hire).
- Senior age + long tenure — employees over 55 with 10+ years routinely achieve significantly higher severance.
See our Severance lawyer Germany page for the full leverage analysis and our Severance calculation reference for the formula in depth.
Beyond severance — what to put in the Vergleich
A well-negotiated labor-court settlement is much more than a severance number. We routinely build in:
- A negotiated reference letter (Zeugnis) with at least Grade-2 wording („stets zu unserer vollen Zufriedenheit”) and a full closing formula. Often more valuable to the next career step than an extra month of severance.
- Garden leave through the notice period at full pay, „ohne Anrechnung” anderweitigen Verdienstes — no offset for income from a new employer.
- Vacation payout (Urlaubsabgeltung) on top of severance, not netted from it.
- Pro-rated bonus for the in-flight bonus year, at target attainment or last-year level.
- Outplacement budget for senior roles, often €5,000–€20,000.
- Mutual confidentiality — never one-way, with carve-outs for tax advisors, future employers, and accidental references.
- Sperrzeit-safe structure for the Aufhebungsvertrag component, where applicable.
Common mistakes that weaken your claim
- Not noting the exact date of receipt. Without it, calculating the 3-week deadline becomes guesswork.
- Communicating directly with HR after the dismissal. Innocuous emails sometimes contain admissions the employer later weaponises.
- Refusing to perform the work during the notice period without a written garden-leave order — risks being reinterpreted as self-resignation.
- Signing a release as part of receiving the dismissal letter. Some employers add a small “acknowledgement” with broader waiver wording; only sign that the letter was received, nothing more.
- Failing to register as job-seeking within 3 days. Separate from the 3-week claim deadline, this is a one-week Sperrzeit issue under § 159(1) Nr. 7 SGB III.
- Posting on social media about the dispute. Even neutral-sounding posts can be used as evidence of cooperative or uncooperative behaviour.
What the employer cannot do once you file
- Cannot stop the running notice period — the contract continues until the notice expires unless you both agree otherwise.
- Cannot deduct from your wages or freeze your benefits without a separate legal basis.
- Cannot retaliate (further unjustified warnings, fishing for behavioural grounds) without inviting additional claims.
- Cannot withhold the Sozialauswahl-Liste if you formally request it — it must be disclosed in pleading.
Worked example
Maria, a software engineer, receives a written dismissal on 5 March citing operational reasons. Her gross monthly salary is €6,500 and she has worked at the company for four years. We file the Kündigungsschutzklage on 12 March (within the 3 weeks). The Gütetermin is scheduled for 28 April. The employer’s social-selection list shows that two colleagues with shorter tenure and fewer dependants were kept on. We use this point to negotiate; the case settles at the Gütetermin for a severance of €19,500 (0.75 monthly salaries per year of service) plus a Grade-2 reference letter and garden leave until 30 June at full pay. Total time elapsed: roughly seven weeks from dismissal to signed settlement.