On a PIP in Germany: the Abmahnung, not the plan

Check the gate before anything else

Full dismissal protection under the Kündigungsschutzgesetz requires both a business with more than ten employees and more than six months' tenure. Below either threshold, dismissal is close to free and most of what follows barely applies.

That is the first German question, and it is not the one people ask. It comes before any analysis of the plan.

Cannot versus will not

German law splits underperformance by cause, and the two branches behave differently.

• Personenbedingt — the worker cannot. Health, lost aptitude. No warning is needed, but the employer must show a negative prognosis, that dismissal is the last resort, and a balancing of interests.
• Verhaltensbedingt — the worker could but will not. Culpable, and a prior relevant Abmahnung is always required.

The performance standard is subjective, which is unusual and useful: you owe your personal best, not the average. In a strong team even good performers are below average, so "below average" on its own justifies nothing.

Employers aiming to shift the burden reach for a specific evidentiary threshold: sustained output more than a third below comparable colleagues' average, or an error rate around three times the average with the nature, severity and operational impact shown. If they clear it, you must explain why you are nonetheless exhausting your capacity — health, tools, a changed territory, a different task mix. If that explanation lands, the employer has to rebut it. Practitioners note these dismissals are often invalid, because vague value judgments do not meet the employer's pleading burden.

The Abmahnung is the clock, not the plan

A verhaltensbedingt dismissal without a prior Abmahnung covering the same kind of breach is attackable. A warning about rudeness does not support a dismissal about output. One relevant warning can be enough; some courts want two.

For triage this translates cleanly: a plan with no Abmahnung on file means the employer is not yet dismissal-ready. When an Abmahnung arrives, the real clock starts — and the negative prognosis is judged on the window between the warning and the dismissal, which makes that window the period your own record matters most.

You can file a written counter-statement, a Gegendarstellung, to your personnel file, and contest a warning you consider unjustified. Calmly, on paper.

If the two arrived together and you are not sure which you are holding, a plan and a warning do different work. In Germany only one of them is a legal instrument, and it is not the plan.

Why German cases settle, and roughly where

There is no statutory severance for dismissal in Germany. What exists instead is employer risk, and it is substantial:

• A Kündigungsschutzklage filed within three weeks of receiving notice. Missing that deadline validates even a baseless dismissal, so it is the hardest date on this page.
• The default remedy is reinstatement.
• Annahmeverzug: if the employer loses, back pay accrues for the whole litigation period.
• The works council must be heard before every dismissal, and a skipped consultation makes it invalid outright.

That risk gets priced as the Regelabfindung — around half a gross monthly salary per year of service, negotiated upward where the employer's case is weak. Performance cases are structurally weak, for the reasons above.

The Sperrzeit trap

Signing an Aufhebungsvertrag — a mutual termination — is presumed to be self-caused unemployment, which brings a twelve-week benefit block and a reduction in duration. A post-dismissal Abwicklungsvertrag carries similar risk.

There is a recognised safe corridor, set by the Federal Employment Agency's own instructions: no Sperrzeit where the employer had announced a dismissal on operational or person-related grounds with certainty, the ordinary notice period is respected, and the severance is no more than half a gross monthly salary per year of service. At or below that ceiling the lawfulness of the threatened dismissal is not examined. Older guidance also set a floor of a quarter of a month per year; the current text, dated July 2026, sets only the ceiling.

Note what that corridor names — operational or person-related grounds, and the instructions add in so many words: not verhaltensbedingt. After a performance plan, the ground written into the exit paperwork decides whether the deal is inside the corridor at all. A "cannot"-framed exit is; a "will not"-framed one is not.

The route that avoids the trap most reliably is the one practitioners recommend: let the dismissal come, file the claim inside three weeks, and settle on the court record as a gerichtlicher Vergleich. The benefit page has the corridor in full and the route around it. Three weeks is the shortest clock this guide covers; the deadlines page has it beside the others.

On an EU Blue Card there is a third position to hold alongside those two, and it is the one with no clock in it: German residence law states no period of permitted unemployment at all. What a Blue Card does when a plan ends in dismissal has the provisions, the European period they do not carry, and what a partner's permit does.

The three-week deadline is short enough to take advice early

Fairhanded is not a law firm, and the benefit corridor above should be checked against the current Federal Employment Agency guidance before anyone relies on it. Where your situation turns on a legal question — and certainly before signing an Aufhebungsvertrag — take it to a German Fachanwalt für Arbeitsrecht. The three-week deadline is short enough that this is worth doing early.