An operational dismissal — betriebsbedingte Kündigung — is the most common form of dismissal in Germany. The employer says: “the role is gone, not the person”. To be lawful under § 1(2) KSchG, the employer must clear four hurdles. Each is fertile ground for challenge.
Hurdle 1: A genuine business decision
The employer must have made a real business decision (Unternehmerentscheidung) that eliminates your role. This can be a closure, a restructuring, an outsourcing, an automation, a relocation. Courts generally accept the employer’s commercial judgment — they will not second-guess strategy — but they will check whether the decision was actually implemented. If your role still exists in substance under a different name, the dismissal fails.
Hurdle 2: No alternative position
Before dismissing, the employer must check whether there is any other comparable role you could fill in the company — possibly after reasonable retraining. If a vacancy exists at your skill level and the employer didn’t offer it to you, the dismissal is normally void. This is the most frequently successful challenge in operational cases.
Hurdle 3: Social selection (Sozialauswahl)
If the role exists in multiple positions and only some are being cut, the employer must apply the social-selection test under § 1(3) KSchG. The four criteria — and only these four — are:
- Length of service (Betriebszugehörigkeit);
- Age;
- Maintenance obligations (children, dependent spouse);
- Severe disability.
The employees who score worst on these social criteria are most protected. If the employer dismissed you while keeping a less-protected colleague in a comparable role, the dismissal is unlawful — even if the underlying business decision was sound.
Comparison is across employees doing the same or comparable work at the same site (Betrieb). It is not company-wide. The employer can also exclude individuals from the comparison pool if their continued employment is in the legitimate interest of the business (Leistungsträger) — for example, a key project lead whose departure would damage operations. Courts watch these exclusions closely.
Hurdle 4: Works council consultation
If a works council (Betriebsrat) exists, the employer must consult it in writing before issuing the dismissal (§ 102 BetrVG). The consultation must include the social-selection reasoning. If the consultation was procedurally defective, the dismissal is void — even if the merits would otherwise have held up.
What to do when you get one
Most operational dismissals are vulnerable on at least one of these four points. Request the social-selection list (you have a right to ask the employer to disclose its reasoning) and bring the dismissal letter to us within the first week. Even where the employer has done everything correctly, the operational dismissal is the type of case that most often ends in a severance settlement at the Gütetermin, simply because the employer wants the file closed.
The “vacancy check” — your strongest argument
Before issuing an operational dismissal, the employer must check whether you could be deployed in another role — possibly after reasonable retraining. This is the single most often overlooked hurdle, and a powerful argument for the employee. We routinely request the company’s full list of open positions and pending vacancies covering the months before and after the dismissal. If a comparable role existed and you were not offered it, the dismissal usually fails.
How to attack a flawed Sozialauswahl
The four criteria — length of service, age, dependants, severe disability — are weighted using a points system that the employer chooses. Courts accept reasonable weightings (often ~1 point per year of service, ~1 point per year of age, 4 points per dependant, 5–10 points for severe disability). Where the employer kept a less-protected colleague, request the underlying points calculation. Often the calculation contains errors, exclusions, or weightings that fall outside the case-law tolerance — and the dismissal becomes void.
Sozialplan vs. individual negotiation
If a works council has negotiated a Sozialplan, the formula in that plan is enforceable as a minimum. You can usually still negotiate above the Sozialplan amount individually — particularly if your specific case has additional leverage (e.g. weak social-selection, missing vacancy check, special-protection category). But the Sozialplan creates a floor, not a ceiling.