Termination agreement: don’t sign without legal review.
A termination agreement bypasses the German dismissal-protection rules. That is convenient for your employer — and risky for you. Before you sign, we tell you the severance you can realistically demand and whether a 12-week unemployment-benefit blocking period is on the table.
A termination agreement (Aufhebungsvertrag) ends the employment by mutual contract, usually faster than the statutory notice period and almost always with severance. The catch: it is treated by the unemployment office as a voluntary termination, which typically triggers a 12-week blocking period for unemployment benefit under § 159 SGB III. The Federal Labour Court ruling BAG 6 AZR 333/21 („faires Verhandeln“) additionally requires fair negotiation conditions — pressure tactics by the employer can invalidate the agreement.
Written and reviewed by Fatih Bektas, German employment-law specialist (APOS Legal Heidelberg).
When to consider signing — and when not
Reasonable to consider
- You have a new job lined up and the start date is close
- The agreement contains a severance and a clean reference
- The employer would have had a strong operational dismissal anyway (avoids Sperrzeit)
- You want to leave the role for personal reasons
Refuse or renegotiate
- No severance offered, or a token figure
- You are under pressure (“sign within an hour”) — BAG 6 AZR 333/21 issue
- You hold strong dismissal protection (pregnancy, severe disability, works council)
- The reference clause is missing or weak
- No express clause protecting your unemployment benefit
The clauses every termination agreement should contain
- Severance: specific amount in € gross, due-date, payment to a named bank account, plus an explicit tax-allocation clause (Fünftelregelung).
- End-date and freistellung: last day of employment, full pay until that date, you released from work duties (Freistellung) with holiday set off.
- Reference: qualified, “very good” (sehr gut) overall grade, agreed text annexed to the agreement.
- Holiday and overtime: remaining holiday paid out in cash, overtime balance compensated.
- Company car / equipment: dates for return, condition expectations, no offset against severance.
- Confidentiality and non-compete: ensure any post-contractual non-compete is properly compensated under § 74 HGB — or waive it.
- “No Sperrzeit” framing: a recital that the employer would have dismissed otherwise on operational grounds, observing the notice period.
- General release (Erledigungsklausel): understand its scope before signing — it bars further claims.
The „fair negotiation“ doctrine (BAG 6 AZR 333/21)
In its 2022 ruling, the Federal Labour Court made clear: an employer who negotiates a termination agreement must respect the employee’s free decision-making. If the employer deliberately exploits a position of weakness — for instance by presenting the agreement as a „sign now or face dismissal within the hour“ choice, or by refusing time for legal review — the resulting agreement is contestable on grounds of unfair negotiation.
„Das Gebot fairen Verhandelns ist eine arbeitsvertragliche Nebenpflicht. Ihre Verletzung durch den Arbeitgeber kann einen Schadensersatzanspruch auf Rückgängigmachung des Aufhebungsvertrags begründen, wenn die rechtsgeschäftliche Entscheidungsfreiheit des Vertragspartners in zu missbilligender Weise beeinträchtigt worden ist.“
English translation: „The duty to negotiate fairly is a secondary duty of the employment contract. Its breach by the employer can justify a damages claim for rescission of the termination agreement if the counterparty's freedom of decision has been impaired in a reprehensible manner.“ — BAG, judgment of 24 February 2022 – 6 AZR 333/21
Source: BAG 24.02.2022 – 6 AZR 333/21 on dejure.org →
Typical red flags under this doctrine: no realistic time for reflection or external review; the agreement sprung on the employee in a surprise meeting; implicit or explicit threats of a particularly damaging form of dismissal if the agreement is not signed. If any of these were present when you signed, the agreement may still be set aside — but the window for action is short.
Termination agreement — most common questions
What is a termination agreement (Aufhebungsvertrag)?
A termination agreement is a mutual contract between employer and employee that ends the employment relationship by agreement, usually with a specific end-date and a severance payment. It bypasses the regular notice period and dismissal-protection rules, which is exactly why it is risky to sign without prior review.
Does signing trigger a Sperrzeit (unemployment-benefit blocking period)?
Often yes. Signing a termination agreement is treated as voluntarily ending the employment, which usually leads to a 12-week blocking period of unemployment benefit (§ 159 SGB III) unless you can show an important cause — for instance, an imminent operational dismissal that would have ended the employment anyway. The exact wording of the agreement (including a recital of the alternative dismissal and observance of the statutory notice period) is decisive. Have this reviewed before signing.
Should I always demand severance?
Yes. If the employer wants you to sign, the leverage is on your side — they are avoiding an unfair-dismissal claim. Realistic ranges are 0.5–1.5 gross monthly salaries per year of service, sometimes more. Without severance, the agreement almost never makes sense.
Can I withdraw a signed termination agreement?
In principle no. There is no general right to withdraw a termination agreement. Only narrow exceptions exist: rescission for fraud or threat (§ 123 BGB), gross breach of the “fair negotiation” doctrine (BAG 6 AZR 333/21), or a Widerruf clause expressly written into the agreement.
What about my reference letter and remaining holiday?
Both should be settled in the agreement. Demand a “very good” qualified reference (§ 109 GewO), pay-out of remaining holiday in cash (§ 7 IV BUrlG), continued use of the company car until the end-date, plus a release from further work duties with continued pay (Freistellung).
Tell us about your case
Fill in the form — we will review your situation. Free of charge, typically within 48 hours. We handle German labour-law matters in English.
What happens next?
After your enquiry we review the details and reply with an initial assessment — whether the dismissal can be challenged, how high a likely severance could be and which next steps make sense.
bektas@apos.legal
+49 6222 9599 2400
Response time: we reply within 48 hours on working days. If you have already received a dismissal, please mention it — deadline-sensitive cases are prioritised.
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