Dismissed without notice after a holiday: did the employer wait too long?

The case: a hearing only after the employee returned

A train manager was initially on a rest period and then on approved annual leave. During his absence, a colleague made a serious allegation against him. The employer learned of it on 27 April 2023. It did not invite the employee to a meeting until 22 May. He denied the allegation in a written statement. On 6 June, he received a dismissal without notice and, in the alternative, an extraordinary dismissal with a deferred termination date.

The dismissals failed because the two-week time limit had been missed. The German Federal Labour Court (BAG) dismissed the employer’s appeal on points of law. For more than three weeks, it had not even attempted to contact the employee to clarify the matter. No particular reason for this was put forward. The BAG judgment brought the dismissal proceedings to a final conclusion. It did not establish that the disputed allegation was true (BAG, judgment of 4 December 2025, 2 AZR 55/25, paras. 4 to 6, 11, 28 to 30 and 37).

When the two-week period begins

§ 626(2) BGB refers to the knowledge of the person authorised to dismiss the employee concerning the relevant facts. According to the BAG, this requires reliable, sufficiently complete information enabling a decision on whether to continue the employment relationship. Both incriminating and exonerating circumstances matter. The date of the alleged incident therefore does not automatically mark the start of the period (para. 12).

If there are initially only indications of misconduct, the employer may investigate further and give the employee an opportunity to respond. Such investigations may postpone the start of the period as long as they are pursued for reasonable grounds and with the required urgency. Mere inactivity is not enough. Where a hearing is intended, the BAG generally requires a short period, usually no longer than one week; special circumstances may justify more time. This is not a rigid one-week deadline for every attempt to make contact during a holiday (paras. 13 to 17 and 22).

A holiday neither suspends the time limit nor requires constant availability

An employer may generally ask whether an employee is willing to help clarify the matter despite being on holiday. In this situation, the BAG does not recognise an absolute priority for uninterrupted rest or a general prohibition on contact. However, this does not create a general duty to monitor a work phone while on holiday. The claimant specifically did not have to be reachable on his work phone (paras. 3, 23 to 27 and 30).

If the employer cannot reach the employee, or the employee declines to comment because they are on holiday, this can generally amount to special circumstances preventing a hearing during the holiday. Known unavailability may also be relevant. Depending on the circumstances, an employer may wait until a shorter holiday has ended. The decisive factors remain the duration, the actual means of contact and the other investigative steps, rather than the mere fact that the employee is on holiday (paras. 21, 27 and 29).

The timeline that matters now

Our practical assessment: following a dismissal without notice, the timeline should be examined alongside the allegation itself. A serious allegation does not remove the need to meet the dismissal deadline. Conversely, the fact that an incident happened some time ago does not, by itself, prove that the deadline was missed.

Our own example: an employer first learns of a possible breach of duty during a lengthy holiday and waits until the employee returns without a clear reason. That may create a similar problem to the BAG case. If, however, the employer promptly documents an unsuccessful attempt to make contact and further necessary investigations, the assessment may differ. The number of days of holiday alone does not determine the outcome.

• Keep the dismissal letter, its envelope and evidence of the actual date of receipt.
• Record the approved leave and the period of absence.
• Collect invitations to hearings, attempts at contact, replies and agreed deadlines for a response.
• Note when each relevant authorised person demonstrably learned of particular circumstances. Identify assumptions as such.
• Have any ordinary dismissal issued in the alternative and the involvement of the works council examined separately.

Your deadline for bringing a claim follows different rules

The two-week period concerns receipt of the extraordinary dismissal, not merely its dispatch. A different deadline is crucial for employees: a claim challenging the written dismissal must generally be brought before the labour court within three weeks of receipt. This also applies to extraordinary dismissals (§ 4, sentence 1, and § 13(1) of the German Protection Against Dismissal Act, KSchG).

If the invalidity of the dismissal is not asserted in time, the dismissal is generally deemed valid from the outset under § 7 KSchG. Exceptions and the possibility of admitting a late claim under § 5 KSchG require a separate assessment. Do not therefore assume that a dismissal you believe to be late will automatically have no effect. An enquiry to the law firm or an objection to the employer does not replace a court claim.

What this judgment does not decide

The BAG case concerns the time limit for extraordinary dismissals and the investigations required during an employee’s absence. It does not create general protection against dismissal during or after a holiday. Whether an ordinary dismissal would be valid is a separate question. In these proceedings, treating the dismissal as an ordinary dismissal failed because the requirements concerning the involvement of the works council had not been met (paras. 31 to 33).

Nor does this judgment establish an entitlement to severance pay or any particular payment. For an individual case, the full letter, what was known and when, the investigations and any further grounds for dismissal all matter. These documents should be assessed together at an early stage.