17. May 2016

Webinar invitation: managing underperformance

In Germany, if an employer is not satisfied with the work of an employee, he cannot easily terminate his or her employment. If the worker has been employed for over six months and the company employs more than ten workers, the restrictions of the German Dismissal Protection Act apply.

If the employee’s output is significantly lower than that of his colleagues, we speak of underperformance. This may in principle be a ground for dismissal if the employee’s output is about one-third or more behind that of comparable colleagues.

If the quality of the work is insufficient, we speak of poor performance. Since quality standards are often hard to measure, this is usually difficult to prove in cases of termination. Evidence may be derived from the job requirements, the number and consequences of mistakes and the frequency of mistakes by other workers. However, there are no fixed criteria.

Termination for reasons of conduct or on personal grounds

Should an employee be able to stop his or her performance deficiencies but refuse to do so, then a termination for reasons of conduct can be considered on the basis of a violation of material contractual duties. However, before any dismissal, the employer must give the employee a warning, urge him to do his job properly and grant him a reasonable period to improve his performance. If the performance deficiencies persist, a termination is justified in principle.

However, should an employee be unable to improve his or her performance, for instance due to illness, and should an improvement not be expected, then a termination on personal grounds can be considered. The employer must also ascertain whether another suitable job, where the performance will not be affected by the limitations, is available within the business. A termination can be justified in principle only if the prediction is negative and no other suitable job can be found.

Webinar on German labour law

If you are interested in the challenges of German labor law for the management of underperformance, please check out our webinar on German employment relations – free of charge.

Our web-based training course will convey to foreign managers the knowledge required to tackle this challenge in compliance with the legal regulations.

The course is offered exclusively in English.

The webinar will take place on Wednesday, June 15, 2016, from 4 PM to 5 PM (Central European Summer Time, GMT+1).

For more information and to sign up for the Webinar, please see here


Julius Jacoby

Arbeitsrecht, Wirtschaftsrecht, Internationales Recht

Julius Jacoby