First of all, it should be noted that if an employee's work performance corresponds to their individual abilities, an employer cannot dismiss the employee solely because they are dissatisfied with that performance. A dismissal is only possible if all conditions laid down by the Labour Code are met.
Firstly, the unsatisfactory work performance must result from insufficient abilities, inadequate qualifications or an irresponsible approach to the employee's work. In the event of a dispute, the courts will always assess the specific circumstances of the individual case. In practice, this means that in some cases the employee's performance may be compared with that of other employees in the same position within the same company, while in other cases the achieved results may be assessed in light of the conditions and opportunities available in the relevant market. The courts will also examine whether the employer bears at least part of the responsibility for the poor performance, for example by failing to provide suitable working conditions.
The second statutory requirement is that the employer has previously issued the employee with a written notice requiring them to remedy the deficiencies. Therefore, the issue should generally not be an isolated mistake but rather repeated or long-term shortcomings in work performance. These deficiencies must be specifically described and substantiated in the written notice, which must also provide the employee with a reasonable period to improve. If the employee fails to remedy the deficiencies within the specified period, the final statutory condition is fulfilled, and the employer may serve the dismissal within twelve months of the written warning having been delivered.
As mentioned above, only the courts can determine whether the statutory conditions for a valid dismissal have actually been met. The employer's own assessment of the employee's performance is not decisive for the court.
In contrast, German courts require employers in similar disputes to take the individual abilities of the employee into account. This means assessing whether the employee performs the tasks assigned to them and whether they do so to the best of their abilities. If an employee's performance is approximately one-third lower than that of colleagues in comparable positions, this alone may constitute grounds for dismissal under German law. However, German courts will examine whether the comparison group is genuinely comparable and whether the employee's individual circumstances have been properly considered. This is particularly relevant where an employee is objectively capable of achieving better results but consciously fails to do so despite having been warned and given an opportunity to improve.
It can therefore be strongly recommended that employers do not underestimate the preparation of a written warning or a dismissal based on unsatisfactory work performance and, where appropriate, seek assistance from an experienced professional. Otherwise, they risk losing a legal dispute over the validity of the dismissal and incurring significant financial costs, even because of what may seem like a minor detail omitted from the warning, confusion between dismissal grounds, or improper delivery of the notice of dismissal.
