When Suddenly Everyone Wants to Leave
Employment Law Pitfalls in Severance and Voluntary Departure Programmes
According to media reports, a major German car manufacturer temporarily suspended its voluntary severance programme only a few days after its launch: the employee portal is said to have been unable to withstand the rush for a time. What sounds like a success illustrates the typical risks of such programmes – for the employer.
1. The Wrong People Leave
Voluntary programmes appeal above all to employees with good prospects on the labour market – often high performers and specialists. Without control, the company loses precisely the know-how it wants to keep. The principle of “double voluntariness” (doppelte Freiwilligkeit) provides a remedy: nobody has to leave, and the employer expressly reserves the right to reject applicants in individual cases. This includes quotas for each department and, where necessary, excluded functions.
2. When Is the Contract Concluded?
Notices in the HR portal should be recognisably non-binding information, not offers. The termination agreement (Aufhebungsvertrag) itself requires written form; electronic form is excluded (§ 623 BGB). A click in the portal therefore does not end an employment relationship. A binding commitment in advance (preliminary contract, Vorvertrag) is likewise effective only in writing (BAG, Urt. v. 17.12.2009 – 6 AZR 242/09). Conversely: where the employer has already handed over a signed contract with an acceptance period, it is bound by it until the period expires, unless it has expressly excluded being bound – a later suspension of the programme does not change this.
3. Selection: Freedom with Limits
Employees generally have no right to a termination agreement. Nor does the principle of equal treatment (Gleichbehandlungsgrundsatz) regularly help where the employer decides on a case-by-case basis (BAG, Urt. v. 17.12.2009 – 6 AZR 242/09). Even allocation in the order in which applications are received (“first come, first served”, Windhundprinzip) was approved by the Regional Labour Court of Düsseldorf (Landesarbeitsgericht, LAG Düsseldorf), even where milliseconds decide in the end (Urt. v. 12.04.2016 – 14 Sa 1344/15). According to that ruling, technical malfunctions do not automatically give rise to claims by rejected applicants – provided the system was tested. The limits are set by the prohibition of discrimination under the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG) and by arbitrary handling. And: a process that fails technically costs trust among the workforce in any event.
4. Works Council and Mass Dismissals
Staff reductions by way of termination agreements are not a space free of works council (Betriebsrat) co-determination (Mitbestimmung). If the reduction constitutes an operational change (Betriebsänderung), a reconciliation of interests (Interessenausgleich) and a social plan (Sozialplan) must be negotiated (§§ 111 ff. BetrVG). Termination agreements initiated by the employer count as dismissals when determining whether a social plan can be enforced (§ 112a Abs. 1 Satz 2 BetrVG) and are equivalent to notices of termination for the purposes of the mass dismissal notification (Massenentlassungsanzeige) (§ 17 Abs. 1 Satz 2 KSchG). The thresholds – in each case a period of 30 calendar days is decisive – must therefore be monitored continuously. Errors in the consultation or notification procedure render terminations that later turn out to be necessary after all invalid (BAG, Urt. v. 01.04.2026 – 6 AZR 157/22, following Court of Justice of the European Union (EuGH), Urt. v. 30.10.2025 – C-134/24 and C-402/24); only minor errors in the information provided are harmless (BAG, Urt. v. 25.06.2026 – 6 AZR 7/26). Furthermore: where a works agreement (Betriebsvereinbarung) grants every interested employee a right to participate, the employer cannot simply stop the programme; the agreement must be amended or terminated for that purpose.
5. No Undue Pressure
Bonuses for a quick decision and short deadlines are common. They must not, however, create a pressure situation that considerably impedes a considered decision. If the duty to negotiate fairly (Gebot fairen Verhandelns) is disregarded, the employer must place the employee in the position as if the contract had never been concluded – the employment relationship then continues (BAG, Urt. v. 07.02.2019 – 6 AZR 75/18).
What Employers Should Determine in Advance
Reduction target, budget and quotas for each department,
double voluntariness and reservation of acceptance – clearly worded,
a transparent, documented selection rule and a reliable portal,
early involvement of the works council and ongoing monitoring of the thresholds under § 17 KSchG,
conclusion of the contract in writing only, deadlines set deliberately,
knowledge transfer and succession planning for key functions.
Conclusion: A voluntary programme is a management tool – but only if it is properly designed from the start. Otherwise it is not the company that decides who leaves, but the workforce.
