Mass Layoff: Termination Without Proper Notification? Invalid!

Judgment of the Federal Labour Court (“BAG”), 1 April 2026 – 6 AZR 152/22 | Implementation of the European Court of Justice (“CJEU”) Judgments Sewel & Tomann

Employers planning a mass layoff who fail to comply with the required notification procedure risk the invalidity of all terminations — with no possibility of cure. On 1 April 2026, the Sixth Senate of the Federal Labour Court made this unequivocally clear, thereby departing from its previous case law. The key finding: if a mass layoff notification is submitted before the consultation procedure with the works council has been completed, all terminations are permanently invalid.

The Case

An insolvent aviation company with approximately 348 employees ceased operations. The insolvency administrator submitted the mass layoff notification to the competent employment agency on 1 July 2020. The issue: the consultation procedure with the Cockpit pilots’ union had not been completed at that point; it was only formally concluded two weeks later with the conclusion of a reconciliation of interests agreement. A flight captain subsequently challenged the termination of her employment — successfully.

The Background: The CJEU Lays the Foundation in 2025

In 2024, the Second and Sixth Senates of the BAG referred key questions to the CJEU: what happens if a mass layoff notification is defective but not objected to by the employment agency, or if the notification is submitted only after terminations have already been issued? On 30 October 2025 (Case C‑402/24 – Sewel and Case C‑134/24 – Tomann), the CJEU clarified that defective or entirely missing notifications cannot be cured. The required procedural obligations must be fulfilled in their entirety before any terminations are issued — not merely initiated. In doing so, the CJEU significantly tightened its earlier case law from 2005 (Junk).

What Did the Federal Labour Court Decide?

The BAG implemented the CJEU judgments by establishing four central principles:

(1) The consultation procedure must be concluded before a valid mass layoff notification can be submitted.

(2) A notification submitted before completion of the consultation procedure is defective and results in an irreversible bar to terminations.

(3) The invalidity of a termination follows directly from an interpretation of Section 18(1) of the German Protection Against Dismissal Act (KSchG) in conformity with EU law; recourse to Section 134 of the German Civil Code (BGB), under which legal transactions that violate statutory prohibitions are void, is no longer required.

(4) Invalidity is merely a legal consequence — not a sanction.

Requirements for a Proper Mass Layoff Notification

The following cumulative requirements must be fulfilled:

(1) Threshold reached: The notification obligation arises only when statutory thresholds are exceeded within a period of 30 calendar days (e.g. at least 30 terminations in establishments with more than 500 employees). If a company with 348 employees plans to terminate the entire workforce, the statutory threshold is clearly exceeded.

(2) Consultation procedure fully completed: The employer must inform the works council in due time about the planned terminations and consult with it on ways to avoid terminations or mitigate their consequences. This procedure must be completed – not merely initiated – before the notification is submitted. In this case, the notification was filed on 1 July, whereas the reconciliation of interests agreement was only concluded in mid-July; this sequence was incorrect.

(3) Written notification with complete information: The notification must contain all required information: the reasons for the terminations, the number and categories of employees affected, the intended period of terminations, and the results of the consultation with the works council. If, for example, the employer fails to include the works council’s opinion in the form or omits the consultation results, the notification is incomplete

(4) Compliance with the required sequence: The applicable EU directive mandates two sequential procedural stages: first consultation, then notification. Conducting these stages in parallel or submitting the notification in advance is impermissible. Even if the employer has already initiated the consultation procedure and expects its completion within a few days, the notification must not be submitted as a precaution.

Practical Guidance for Employers

There is no longer any room for tactical shortcuts in the mass layoff procedure. Errors in the notification process cannot be cured. If, for example, an employer realizes three weeks after submitting a mass layoff notification that the consultation procedure was still ongoing, a renewed notification will not remedy the defect. The guiding principle is therefore: consult first, then notify, then terminate — in precisely this order. Employers who conduct the consultation procedure in parallel with submitting the notification, or who file the notification prematurely, risk the permanent invalidity of all terminations. Given that the CJEU has ruled out any possibility of cure, the risk is existential: in the worst case, all employment relationships remain in force, including full remuneration obligations.

This blog post was written by Nadine Birke in collaboration with Katharina Schapfeld, a labor law trainee.