(Continued) employment after termination of employment relationship

In labour law practice, it is increasingly common for employees who have been given notice of termination to refuse to accept exemption clauses and instead take legal action against them. In many cases, employees are not actually seeking to actively continue their employment relationship, but are instead attempting to exert additional pressure on their employer in order to achieve a favourable settlement.

The prospects of success for proceedings regarding to the right to employment during the notice period depend largely on the legal validity of the agreed exemption clause (further information on the legal validity of exemption clauses can be found here). With regard to continued employment after termination of the employment relationship, a distinction must be made between various scenarios.

Enforcement of the right to employment in the main proceedings

Under German labour law, employees generally have a right to actual employment, which is derived from the employment contract and the general right of personality. If an employee is dismissed with notice and files an action for unfair dismissal, they are generally entitled to demand continued employment until the proceedings are legally concluded within the framework of the general right to continued employment. Such a claim is regularly granted to the employee in the main proceedings if the labour court considers the dismissal to be invalid.

The disadvantage for the employee is that unfair dismissal proceedings often drag on for a long time and therefore a decision on the right to continued employment is only made at a late stage. It is therefore more attractive to enforce employment claims by means of a preliminary injunction.

The general right to employment in injunction proceedings

Particularly in the case of longer notice periods, employees can enforce their general right to employment for the duration of the notice period by means of a preliminary injunction. The legality of the exemption agreement is then decisive. This is because case law sometimes considers the mere obstruction of justice to be sufficient grounds for enforcing the right to employment. In the case of an (ineffective) agreement on the unilateral release of the employee, courts already consider the unlawful "forced inactivity" of the employee to be sufficient grounds for an injunction. A longer period of exemption significantly restricts the employee's ability to develop personally, so that the rejection of a preliminary injunction on this basis would amount to an unacceptable denial of legal protection. It is therefore important for employers to use effective exemption clauses in employment contracts that meet the requirements of case law.

The general right to employment after expiry of the notice period

Even in the case of a general right to employment after the notice period has expired, the employee must be able to assert a corresponding reason for reinstatement. As a rule, the interests of the employer and the employee must be weighed against each other. There must be no overriding interests of the employer that are worthy of protection and that would prevent such employment. Employers can, for example, invoke their interest in protecting themselves against the betrayal of trade secrets or other harmful behaviour. On the other hand, employees must credibly demonstrate significant disadvantages, such as the loss of skills, competencies, specialist knowledge, financial losses or the loss of valuable customer contacts.

The right to continued employment under works constitution law in preliminary injunction proceedings

If the works council has objected to the ordinary termination and the employee has filed an action for unfair dismissal within the specified period, employees can invoke the right to continued employment under works constitution law pursuant to Section 102 (5) BetrVG. It is controversial whether continued employment must be granted solely on the basis of an effective objection by the works council or whether, in addition to the claim for an injunction, it is also necessary to substantiate a reason for the injunction, i.e. to demonstrate a particular interest on the part of the employee in averting significant disadvantages. The case law of the regional labour courts is not uniform on this issue.

Conclusion

For employers, the legal defence of employment and continued employment claims after dismissal, especially in preliminary injunction proceedings, remains fraught with uncertainty. In order to strengthen their legal position, companies should formulate exemption clauses in employment contracts with particular care. In the event of a dispute, it is advisable to clearly document and justify their own protective interests (e.g. protection of confidentiality, competition risks). Overall, the legal situation remains inconsistent and the prospects of success depend heavily on the individual case.