Effectively serving notice of termination is rarely a mere formality. German employment law regularly presents employers with significant practical challenges in this respect. These include the strict written-form requirement (“wet ink”) under Section 623 of the German Civil Code. Problems arise where those authorized to give notice are located abroad and time is of the essence, for example where the probationary waiting period is about to expire or where termination for cause is contemplated. Arranging for the timely signature of the termination letter and then delivering the original across national borders is, in practice, often associated with considerable – at times extremely high – administrative effort, substantial costs, and a heightened risk of error.
Federal Labor Court: Purpose of Form over Formalism – Exceptions to the Strict Written-Form Requirement May Be Possible in Cross-Border Cases
Against this background, a recent judgement of the German Federal Labor Court merits particular attention, although it has not yet received the level of practical consideration it deserves. On August 22, 2024 (docket no. 2 AZR 251/23), the BAG held that, in cross-border situations, the termination of an employment relationship of an employee who mainly works in Germany does not necessarily have to comply with the written-form requirement under Section 623 BGB.
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