You call in sick with a proper certificate — and receive a dismissal two days later. You ask in writing for your unpaid overtime — and suddenly collect three Abmahnungen in a fortnight. German law has a name and a rule for this: the Maßregelungsverbot of § 612a BGB. An employer may not disadvantage you because you exercised your rights in a permissible way — and a measure that violates this ban is void, including a dismissal, even in small companies and during probation where normal dismissal protection does not apply. For expats at startups and small employers, § 612a BGB is often the only dismissal shield they have — and most have never heard of it.
The rule: § 612a BGB
§ 612a BGB provides that the employer may not disadvantage an employee in an agreement or a measure because the employee exercises his or her rights in a permissible manner. Three elements:
- You exercised a right lawfully — statutory, contractual or constitutional.
- The employer took a detrimental measure — anything from dismissal to a schedule change.
- Causation: your exercise of the right was the decisive motive (the “tragender Beweggrund”) for the measure.
The legal consequence is sharp: the retaliatory measure is void (§ 134 BGB). A retaliatory dismissal is void regardless of company size and regardless of tenure — § 612a BGB applies from day one, in the 6-month waiting period, and in businesses with 10 or fewer employees where the KSchG never applies.
What “exercising your rights” covers
The protected trigger is broader than employees expect. Recognised examples include:
- Taking sick leave with a proper certificate — being ill and saying so is exercising a right.
- Asserting pay claims: unpaid salary, overtime, minimum wage, bonus entitlements.
- Filing or announcing a lawsuit — a Kündigungsschutzklage, a payment claim, a Zeugnis correction claim.
- Refusing unlawful instructions: working through vacation, off-the-clock work, tasks outside the contract, safety violations.
- Filing an internal complaint (§§ 84, 85 BetrVG, § 13 AGG) or supporting a colleague’s complaint as a witness.
- Refusing to sign an Aufhebungsvertrag or a contract amendment you are entitled to decline.
- Requesting parental leave, part-time, or vacation you are entitled to.
The exercise must be permissible: a fabricated sick note or an unjustified work refusal is not protected — the underlying right must actually exist and be exercised lawfully.
§ 16 AGG: the specific rule for discrimination complaints
Where the right you exercised is an AGG right — complaining about discrimination or harassment, asserting AGG claims, or acting as a witness for a colleague — § 16 AGG contains a specific victimisation ban with the same thrust: no detriment for using your rights. In discrimination contexts the two provisions run in parallel, and the AGG’s evidentiary relief (§ 22 AGG: indicia shift the burden of proof) can be invoked alongside.
Typical retaliation patterns
Retaliation rarely announces itself. In our practice the recurring patterns are:
- The sudden Abmahnung cluster: years without criticism, then two or three formal warnings within weeks of your complaint or claim — often for trivialities or conduct long tolerated.
- Schedule and shift manipulation: reassignment to unattractive shifts, revocation of home-office arrangements, sudden “operational needs” affecting only you.
- Exclusion: removal from projects, meetings and mailing lists; work quietly redistributed; the calendar emptied.
- Bonus and promotion denial: discretionary components cut, a promised salary review indefinitely “postponed”.
- The “operational” dismissal that materialises weeks after your claim, in a role that is then quietly refilled.
Proving causation: timing is your strongest card
Unlike the AGG (§ 22) and the HinSchG (§ 36), § 612a BGB contains no statutory burden-of-proof reversal — you must persuade the court that your exercise of rights was the decisive motive. In practice, courts accept powerful circumstantial evidence:
- Close temporal proximity: days or a few weeks between your protected act and the measure is the classic indicium.
- A clean prior record: years of good reviews make sudden “performance concerns” implausible.
- Shifting or pretextual justifications: the reason given today differs from the one given last week.
- Unequal treatment: colleagues who did the same thing face no consequences.
- Loose lips: remarks like “if you go to a lawyer, don’t expect favours here” — note them down verbatim, with date and witnesses.
Consequences: void measures — but deadlines still run
A measure that violates § 612a BGB is void: a void dismissal never ends the employment, a void contract change does not bind you, a retaliatory Abmahnung must be removed from the file (see Abmahnung removal). Two practical caveats:
- The three-week deadline applies to dismissals. Even a plainly retaliatory dismissal becomes valid if you do not file a Kündigungsschutzklage within three weeks (§§ 4, 7 KSchG) — the deadline covers all invalidity grounds, § 612a BGB included.
- Damages can come on top: financial losses caused by the retaliation (lost bonus, lost pay) are recoverable under general contract-liability rules.
Worked example
Backend developer at a 9-person Berlin startup, 5 months into the job, gross salary €4,000/month. No KSchG protection: the company is below the 10-employee threshold and he is within the 6-month waiting period. In month 4 he asserts, in writing, €2,300 of unpaid contractual overtime. The CEO replies that “this is not how we work here”. Eleven days later he receives an ordinary dismissal “within probation — no reasons needed”.
Most employees in this position assume they have zero protection. Analysis:
- Asserting the overtime claim was a permissible exercise of rights; the 11-day gap and the CEO’s reply are strong causation indicia; a co-founder’s message (“he can go if he wants to play lawyer”) surfaces in disclosure.
- Kündigungsschutzklage filed on day 15, arguing the dismissal is void under § 612a BGB despite the absence of KSchG protection.
- The employer, facing a live risk that the employment continues indefinitely plus accruing salary arrears, settles at the Gütetermin.
Result: €10,000 severance (2.5 monthly salaries — far above the near-zero norm for a 5-month probation exit), the €2,300 overtime paid in full, an agreed termination date one month out on garden leave, and a good qualified reference. Total value: approximately €16,300 plus the reference — from a case the client almost did not bring.
Frequently asked questions
I am in my probation period at a small company. Does § 612a BGB really protect me?
Yes. § 612a BGB is independent of the KSchG: it applies from the first day of employment and in businesses of any size. What you lose without the KSchG is the requirement of social justification — not the ban on retaliation. The practical hurdle is proving the retaliatory motive, which is where timing and documentation decide.
I was dismissed right after calling in sick. Is that automatically void?
Not automatically — the employer may dismiss during sickness for independent reasons. It is void if you can show the dismissal was because you exercised the right to report sick. Immediate proximity (dismissal within days of the sick note), a history of pressure to work while ill, or telling remarks make such cases strong.
How close must the timing be to count as evidence?
There is no fixed rule. Days to a few weeks is powerful; two or three months can still work when combined with other indicia (clean record, pretextual reasons, unequal treatment). The longer the gap, the more supporting evidence you need — another reason to document from day one.
I received an Abmahnung as retaliation. What do I do?
Do not sign any acknowledgment of the allegations. You can submit a written counter-statement for the file, demand removal, and — because a retaliatory warning violates § 612a BGB — enforce removal in court. See our guide on removing an Abmahnung. Strategically, the warning also becomes evidence of the retaliation pattern.
Does § 612a BGB give me severance?
Not directly — it voids the retaliatory measure. But a void dismissal means the employment continues with full salary accruing, which is precisely the leverage that produces above-standard settlements. In retaliation cases we regularly see multiples well above the customary 0.5 monthly salaries per year of service.
Who has to prove what?
You carry the burden of proving that your lawful exercise of rights was the decisive motive — there is no statutory presumption under § 612a BGB (unlike § 36 HinSchG for whistleblowers or § 22 AGG for discrimination). Courts, however, draw robust inferences from timing, pretext and unequal treatment. With a documented timeline, the practical burden often lands back on the employer to explain itself.