The story: a night ride down from a mountain hut
The protagonist had spent nine years as a certified industrial foreman (Industriemeister) in a Munich plant of around 200 employees manufacturing stainless-steel kitchen sinks. He led a production team in a 35-person department, earned 4,500 euros gross per month and every November received a Christmas bonus (Weihnachtsgeld) of a full monthly salary.
In late October he was celebrating with friends at a hut in the Bavarian Alps. With him was his partner — a bookkeeper employed at the same plant and the only daughter of the plant manager (Betriebsleiter). Late in the evening, heavily drunk, she insisted on returning to their shared flat. He gave in, although he had been drinking himself. Around 11 p.m. he rolled out his motorcycle. His blood alcohol level was 1.49 per mille, hers above two, neither wore a helmet, and ahead of them lay a night descent on a difficult gravel track he knew well. After two kilometres the motorcycle went down in a bend. His partner died at the scene. He was taken to hospital with multiple fractures of the leg and a sick note for two and a half months.
Already at the funeral, attended by nearly the entire workforce, the first outrage surfaced. The father of the deceased — the plant manager — fell into a deep depression and was the first to tell management that if the man responsible for the accident returned to work, he would leave for a competitor immediately. Sixteen skilled workers of the department joined that position. The employer did not capitulate at once: it invited each of them to individual talks and offered to transfer the employee to another department. The answer was unambiguous — him or us.
Events then moved quickly. While the employee was still on sick leave, the employer summoned him in writing to appear at the plant for a meeting “about his further deployment after recovery”. He refused — and received a formal warning (Abmahnung) threatening dismissal. The employer also refused to pay statutory sick pay for the first six weeks of illness, citing grossly negligent drunk driving. Then came more bad news: invoking “economic hardship” (wirtschaftliche Notlage) after an external purchasing agent had defrauded the company of roughly 500,000 euros, the employer revoked the Christmas bonus for the entire workforce. In mid-January the employee finally received ordinary notice of dismissal with the statutory three-month notice period.
Four disputes thus landed before the labour court in a single lawsuit: the validity of the dismissal, removal of the warning from the personnel file, six weeks of sick pay and the Christmas bonus of 4,500 euros.
The judgment: 2:2 — and every point teaches a different lesson
The Munich labour court split the match. It upheld the dismissal and rejected the sick pay claim. It ordered the warning removed from the personnel file and awarded the full Christmas bonus with interest. The four rulings together form a small compendium of how dismissal law in Germany actually works.
1. Druckkündigung requirements: when workforce pressure justifies dismissal
A Druckkündigung is not a separate type of dismissal. It describes a situation in which third parties demand the dismissal of a specific employee while threatening the employer with disadvantages. The case law distinguishes two variants. Where the demand is objectively justified by the employee’s conduct or personal circumstances, one speaks of an “unechte Druckkündigung” — the employer simply dismisses for conduct-related or personal reasons and the pressure is mere background. Matters get difficult where the employee has breached nothing — as here, because the tragic accident belonged entirely to his private life. Then the only route is the “echte Druckkündigung”, which the Federal Labour Court (BAG) has for decades classified as a dismissal for operational reasons (betriebsbedingt) under § 1(2) of the Dismissal Protection Act (KSchG).
The BAG sets a very high bar. In its classic judgment of 19 June 1986 (2 AZR 563/85) it held that an employer may not simply give in to pressure: its duty of care requires it first to stand protectively in front of the employee and genuinely try to talk the threatening parties out of their announcement. Only where that fails, and carrying out the threat would cause the employer serious economic harm, can the dismissal be socially justified — provided it is “the only practically feasible means” (“das einzig praktisch gangbare Mittel”) of averting that harm. The BAG confirmed this line in its judgment of 18 July 2013 (6 AZR 420/12), again stressing both the protective duty and the absence of any milder alternative.
Legal literature attacks the construct on two levels. Some authors question the classification: since the real trigger of the pressure is the employee’s person, the dismissal belongs closer to personal grounds than to operational ones (so ErfK/Oetker, KSchG § 1 para. 184, critically also Ascheid/Preis/Schmidt/Kiel, KSchG § 1 para. 521). Others reject the echte Druckkündigung altogether, arguing in one sentence: “Das Recht braucht dem Unrecht nicht zu weichen” — the law need not yield to injustice, so an employee who breached nothing should not lose his job to an unjustified ultimatum (so among others Preis/Vossen/Temming, Kündigung, para. 970, Däubler/Deinert, KSchG § 1 para. 469, and KR/Rachor, KSchG § 1 para. 625). The courts answer with the employer’s responsibility for the whole plant: it cannot be expected to absorb, in the interest of one employee, harm that threatens the jobs of everyone else.
In the present case the court considered the strict test satisfied. The threat was concrete and credible: the plant manager and 16 skilled workers of a key department — people practically impossible to replace quickly in the current labour market — had announced their departure. The employer proved it had spoken to each of them individually and offered to transfer the employee to another department, which was categorically rejected. The predicted consequence — a drop in turnover of at least 20 percent and a de facto standstill of the department’s production — the court assessed as serious economic harm that no milder measure could avert. The dismissal stood, although the employee had breached no employment duty at all.
2. A warning for refusing a meeting during sick leave: here the employer loses
The warning thread ended very differently. The BAG settled the question in its judgment of 2 November 2016 (10 AZR 596/15): an employee unfit for work due to illness is in principle not obliged to appear at the plant for a staff meeting. The sick note suspends the duty to work and the duties directly connected with it. Because of the risk of disturbing recovery, the employer may direct instructions at a sick employee only where there is an urgent operational reason (dringender betrieblicher Anlass) — and may demand personal attendance at the plant only exceptionally, where it is genuinely indispensable. The burden of proving those circumstances lies entirely with the employer. We cover the rights of employees on sick leave in Germany separately.
In our story the employer could not carry that burden. The conversation about future deployment could have been held by telephone or postponed a few weeks until the sick leave ended. The refusal was therefore no breach of duty, and a warning issued for lawful behaviour must be removed from the personnel file — the legal basis is § 1004 of the Civil Code (BGB) applied by analogy in conjunction with § 242 BGB. A procedural aside: the employer argued that after the dismissal the removal claim had become pointless. The court replied that as long as the dispute over the dismissal had not been finally decided, the employment had not ended “undisputedly” — so the claim remained fully alive.
3. Sick pay: 1.49 per mille closes the door
The third thread is Entgeltfortzahlung — statutory sick pay, which the employer in Germany owes for the first six weeks of incapacity (§ 3(1) EFZG). The statutory condition: the incapacity must not be the employee’s fault. The case law reads this fault in a specific way, as “Verschulden gegen sich selbst” — fault against oneself. Minor carelessness of the kind that happens to everyone does not cost the entitlement. The line is crossed only by a gross breach of the conduct a sensible person would observe in his own interest — so the settled BAG case law (see the judgment of 18 March 2015, 10 AZR 99/14, where the BAG also recalled that alcohol addiction as an illness can exclude the fault charge).
A night motorcycle ride with a passenger, with almost 1.5 per mille of alcohol in the blood — well above the 1.1 per mille threshold of absolute unfitness to drive — without helmets and down a difficult gravel slope meets that definition with room to spare. The employee’s argument that he had managed two kilometres before the crash did not impress the court. The sick pay claim failed entirely, leaving only the sickness benefit from the statutory health insurer.
4. The Christmas bonus: “economic hardship” is not every financial squeeze
The final round went to the employee again. His contract promised a Christmas bonus of a full monthly salary, with the proviso that “the employer reserves the right to revoke this benefit in the event of economic hardship” (wirtschaftliche Notlage). Such a clause in a standard-form contract is reviewed like general terms and conditions. Under BAG case law a revocation reservation is permissible if it names at least the direction of the revocation grounds and the revocable portion does not exceed 25 percent of total remuneration (landmark judgment of 12 January 2005, 5 AZR 364/04). Both conditions were met here: the bonus was just under 10 percent of annual pay and “economic hardship” sufficiently marks the direction. The clause itself was valid.
The employer failed at the second stage — the review of how the right was exercised (Ausübungskontrolle, § 315 BGB). The revocation must correspond to equitable discretion, and above all the reserved condition must actually have occurred. A fraud of half a million euros and temporarily brushing against the overdraft limit is a serious problem, but not yet “economic hardship”. That threshold is reached only with lasting, serious payment difficulties threatening the company’s existence. Where the bar lies is shown by the BAG judgment of 24 January 2017 (1 AZR 774/14): there the revocation of the Christmas bonus survived because the employer stood at the edge of insolvency, averted only by an investor stepping in. Nothing comparable was shown in our case. The employee received his full 4,500 euros with interest.
What this means for employees
- Dismissal under pressure in Germany is possible, but it is an absolute exception. The employer must prove it tried to protect you, that the threats were serious and concrete and that no milder measure existed. Each of those points can and should be attacked in court.
- Mind the three weeks. An unfair-dismissal claim (Kündigungsschutzklage) must be filed within three weeks of receiving the notice — without it even a doubtful Druckkündigung becomes effective. How such proceedings work is covered in our article on the German labour court.
- During sick leave you need not appear at the plant for staff meetings. The exceptions are narrow and the employer must prove them. A warning issued for such a refusal can be removed from the file.
- An accident under the influence can cost you all six weeks of sick pay. The line of “fault against oneself” runs at gross negligence, and driving while absolutely unfit is the textbook example.
- Always check a revoked Christmas bonus in two steps: is the clause valid at all, and did the reserved condition really occur. Employers often lose on the second step.
What this means for employers
- Before yielding to workforce pressure, run and document a “protection programme”: individual talks with those making threats, attempts to defuse the conflict, an offer to transfer the employee. Without it the Druckkündigung will fail in court.
- Prove the harm concretely: named departure declarations, the importance of those people for production, a realistic loss forecast. Generalities about a “bad atmosphere” will not do.
- Leave a sick employee alone, unless there is an urgent need that cannot wait — and even then start with a phone call, not a summons to the plant under threat of a warning.
- When revoking a benefit for economic reasons, be ready to demonstrate a real threat to solvency. A temporary liquidity dip is not enough.
The workforce demands a dismissal — what to check first
Whether the demand is objectively justified by the employee’s conduct or person. Whether the employer made documented attempts to protect the employee and defuse the conflict. Whether the threats are concrete, personal and credible. What economic harm realistically looms and how to prove it. Whether a milder measure exists — transfer, reorganisation, mediation. The deadline: three weeks for the Kündigungsschutzklage from receipt of the notice.
Frequently asked questions
What is a Druckkündigung in Germany?
A dismissal declared under pressure from third parties — usually the workforce, more rarely clients or business partners — who demand the removal of a specific employee under threat of disadvantages. Where the demand has no objective justification in the employee’s conduct or person, such an “echte Druckkündigung” is permissible only exceptionally, as a dismissal for operational reasons.
Can a dismissal under pressure in Germany be valid if the employee did nothing wrong?
It can, but the courts set three strict conditions: the employer must first have genuinely defended the employee, the threat must have announced serious economic harm, and the dismissal must have been the only practically feasible means of averting it. The full burden of proof lies with the employer.
Do I have to come to the office for a meeting while on sick leave?
In principle no. According to the BAG a sick employee need not appear at the plant for a staff meeting. Only exceptionally, where an urgent operational reason exists and personal attendance is indispensable, may the employer demand it — and it must prove those circumstances. A warning for refusing in the typical situation is unlawful and must be removed from the file.
Can the employer refuse sick pay after an accident involving alcohol?
Yes, if the employee caused the incapacity through gross negligence — the case law speaks of “fault against oneself”. Driving a car or motorcycle while absolutely unfit to drive is the classic example. What remains is the sickness benefit from the statutory health insurer.
Can the employer unilaterally revoke the Christmas bonus?
Only under a valid revocation clause — it must name the direction of the revocation grounds and may cover at most 25 percent of total remuneration. Even a valid clause is not enough where the reserved condition, for example “economic hardship”, did not actually occur. Temporary financial trouble does not suffice — the company’s existence must be at stake.
This overview draws on a judgment of the Munich labour court (parties anonymised) and on the case law of the Federal Labour Court: judgments of 19 June 1986 (2 AZR 563/85), 18 July 2013 (6 AZR 420/12), 2 November 2016 (10 AZR 596/15), 12 January 2005 (5 AZR 364/04), 24 January 2017 (1 AZR 774/14) and 18 March 2015 (10 AZR 99/14), as well as § 1 KSchG, § 3 EFZG, § 106 GewO and §§ 305 et seq. BGB. This article is for information purposes and does not replace legal advice in an individual case.