What is Aufhebungsvertrag

Last Updated on March 14, 2024

In this topic, we will find out what is Aufhebungsvertrag (termination of an employment contract by agreement of the parties), what pros and cons it has. In addition, we will explore what is Abfindung and Sperrzeit.

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The standard termination of an employment contract is Kündigung. It can be at one’s own request, or at the request of the employer. Kündigung is described in detail in the legislation – how much time must pass, for what reasons one can be fired and how much to pay. It is clear that compliance with all these rules can be inconvenient for the employers, and they really want to fire the employee. What to do if the employee, in fact, is not going anywhere? Then they can try to come to an agreement with him and conclude an Aufhebungsvertrag – terminate the employment contract by agreement of the parties.

What is Aufhebungsvertrag – pro and contra

Pros

Firstly, since the employer is so eager to throw you out of work, the advantage is on your side – you can negotiate. Since you suddenly lose your job without any other prospects, you must be compensated for this loss.

Secondly, if the employer has already announced that he is going to fire you, then sooner or later he will still do it and it is difficult to prevent him from doing this. He has many methods of dealing with you, don’t doubt it. If you think that he has a conscience and he will not fire you because you have children, a difficult situation at home, illness, etc…. – you are very mistaken.

Dirty tricks can also be used. You may be given impossible tasks – those that are assigned to many people for several months, and you must complete alone in a couple of days. You can be constantly monitored and poked at for any reason. They can check the time of arrival to work and lunch every second, force you to draw up a minute-by-minute plan for your work, check your correspondence and the time you spend on the Internet or or talking with colleagues.

Even if you behave perfectly and they cannot give you an Abmahnung (warning), your health can easily be ruined.

I don’t recommend relying on the German courts: they believe that the employer should be able to get rid of the employee. The court will not check how idiotic tasks you were given and how much you were bullied. At best, this will end in the same Aufhebungsvertrag, at worst – you will simply be fired with a bad recommendation and without any monetary compensation.

Therefore, Aufhebungsvertrag is a way to end a relationship with benefit for yourself instead of a hassle with an unknown outcome.

Contras

The main disadvantage of Aufhebungsvertrag, besides the fact that you suddenly find yourself without a job, is the attitude of the Arbeitsamt towards it.

It equates an agreement between the parties to termination of work at your own request (that is, you are responsible for losing your job). Therefore, it may refuse to pay unemployment benefits for a period of up to 12 weeks (that is, almost three months). Thus, only 9 months remain of your right to maintenance from the state. This is called Sperrzeit beim Arbeitslosengeld. If you are entitled to receive unemployment benefits for more than a year, then the Sperrzeit may be longer.

Arbeitsamt will definitely punish if the contract was terminated for “personal” reasons.

But the period of Sperrzeit can be reduced to 6 weeks if:

there are important reasons for terminating an employment contract, such as mobbing, bossing or sexual harassment
impossibility of career advancement, religious reasons, childcare
the contract would have been terminated after 12 weeks in any case

To avoid Sperrzeit, you must prove that you had the following reasons:

illness
an old employee gave way to a younger one
care for a sick relative or child
employer requires work that violates worker protection requirements
physical pressure or mobbing
work requires maintaining a double household, which makes it impossible to support a family
the employee was informed that he would be fired in any case (but not for reasons where he was to blame)
if there are reasons when you have the right to terminate the contract without observing the termination period (that is, the work is to blame)
if you change your place of residence (for example, get married and move)
if you already have an agreement on a new job

The key word here is “to prove” – proving mobbing, for example, is very difficult. Remember that you have no right to make any secret audio or video recordings.

As an exception, the Arbeitsamt does not check how important the reason for terminating the contract was if the employee received compensation in the amount of 0.25 to 0.5 monthly salaries for the year worked and the employer fired him in compliance with the deadline for terminating the contract (which depends on the number of years worked).

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What to look for when concluding an Aufhebungsvertrag

It is recommended to conclude an Aufhebungsvertrag in consultation with a lawyer. However, you must understand that:

firstly, a consultation will cost you about 200-300 euros, even if you have lawyer’s insurance – most insurances have a excess, that you pay yourself, of approximately the cost of the consultation

secondly, insurance does not pay for a Aufhebungsvertrag – you will pay your lawyer for the drafting of the contract and negotiations with the work in the amount of 10 percent of the compensation. Depending on the complexity of negotiations, the percentage may be higher.

What you should pay attention to:

the agreement must be in writing and signed by both parties. Exchange of emails is not suitable.

the employee must have time to think, otherwise he has the opportunity to challenge the contract with the wording that he was under pressure.

if an employee is threatened with dismissal, he can later challenge the Aufhebungsvertrag. True, he will have to prove this in court, which is almost impossible

the agreement must include a date for termination of employment. It is desirable for the employee that this date coincides with the period of dismissal to which he is entitled (depending on the time worked in this organization). Otherwise, he may receive another fine from the Arbeitsamt, which is called Ruhezeit, and will not be insured in Krankenkasse during this period.

It is clear that the contract must contain some clauses that are pleasant to you, otherwise you would never have signed it. Usually the main thing is Abfindung – monetary compensation for loss of work. Standard Abfindung – 0.5 monthly salary for each year worked. More than six months is rounded up to a whole year. A larger compensation may encourage Arbeitsamt to withhold benefits for a while.

But besides Abfindung, the agreement also contains important points:

Freistellung – a clause about how long you still have to show up for work

rest of vacation (Resturlaub)

the right to additional payments (bonuses, Sonderzahlungen)

special attention should be paid to Arbeitszeugnis – your characteristics from the employer. In Germany they write in Aesopian language, which you should know and which we will talk about in another topic

And you thought you were being praised. German certificate of employment Arbeitszeugnis

your responsibilities towards the employer and its secrets – non-disclosure clauses and non-compete clauses (Wettbewerbsverbote)

What is Aufhebungsvertrag – pro and contra

Pros

Contras

What to look for when concluding an Aufhebungsvertrag

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