EMPLOYMENT LAW · BERLIN
New Job During a German Dismissal Protection Case: Do I Have to Return to My Former Employer?
A dismissal protection case can take a long time. Many employees look for a new job while the court case is still pending. This is often sensible and sometimes necessary.
But what happens if the employee later wins the dismissal protection case?
The old employment relationship may then legally continue. At the same time, the employee may already have entered into a new employment relationship. The employee then faces a difficult question:
Do I have to return to my former employer?
German law contains a specific rule for this situation.
Why does this problem arise?
When an employee files a dismissal protection claim, the legal question is initially whether the dismissal ended the employment relationship.
If the court finds that the dismissal was invalid, the employment relationship generally continues.
However, the proceedings may take months. During this period, the employee is often no longer working for the former employer and must secure income. Many employees therefore look for a new job while the case is pending.
This can lead to a double commitment:
• The old employment relationship continues after the judgment.
• At the same time, the employee has entered into a new employment relationship.
In practice, both employment relationships often cannot be performed at the same time.
May I take a new job during a dismissal protection case?
Yes, employees may generally take a new job during a dismissal protection case.
In many cases, this is understandable. The employee should not simply wait passively until the court case ends.
In addition, income from a new job may be credited against possible default-of-acceptance pay owed by the former employer. This means that if the former employer later has to pay back salary, income from the new job is generally taken into account.
What happens if I win the case?
If the court finally determines that the old employment relationship continues, the employee has to make a choice.
In principle, the employee can:
• return to the former employer,
• or, under certain conditions, declare that they refuse to continue the old employment relationship.
This choice is important because otherwise the employee could be bound to two employment relationships at the same time.
What does the law provide?
German law gives employees a choice in certain cases.
If a court decision establishes that the old employment relationship continues, but the employee has meanwhile entered into a new employment relationship, the employee may refuse to continue the old employment relationship.
Put simply:
The employee may choose the new job and does not have to return to the former employer.
However, the employee must make a timely declaration to the former employer refusing continuation of the old employment relationship.
When does this choice apply?
This option requires:
1. There is a court decision stating that the old employment relationship continues.
2. The decision has become final.
3. The employee has meanwhile entered into a new employment relationship.
4. The old employment relationship has not already ended for other reasons.
5. The employee declares in time that they refuse to continue the old employment relationship.
Important: In principle, the conclusion of a new employment contract is sufficient. It is not always necessary that the employee has already started working in the new job.
Mere negotiations about a new job are not enough.
Does this also apply to self-employment?
The statutory rule refers to a new employment relationship.
Anyone who becomes self-employed during the dismissal protection case is therefore not automatically in the same situation as someone who has signed a new employment contract with another employer.
This is an important distinction. Anyone who starts self-employment during the proceedings should have checked separately which rights and duties still exist in relation to the former employer.
What deadline applies?
The deadline is very short.
The employee must refuse continuation of the old employment relationship within one week after the judgment becomes final.
This deadline should be taken very seriously. If it is missed, the special right to choose may be lost.
The old employment relationship then generally continues. The employee must expect that the former employer may ask them to return to work.
What form must the declaration have?
The declaration refusing continuation must be made in writing.
It is not sufficient to merely tell the former employer verbally that the employee does not want to return.
The declaration should be clearly worded. It should state that the employee refuses to continue the old employment relationship.
The deadline can be met by posting the written declaration before the deadline expires. If the declaration is delivered by messenger, it must reach the employer within the deadline.
What happens if I stay silent?
Silence can be dangerous.
If the employee does not make the declaration within the one-week period, the right to end the old employment relationship in this way expires.
The old employment relationship then generally continues. The employee must expect that the former employer may ask them to return to work.
If the employee then does not appear, further legal problems may arise.
What about salary claims against the former employer?
The decision whether or not to continue the old employment relationship can have significant consequences for salary claims.
If the employee refuses to continue the old employment relationship under this rule, the claim for default-of-acceptance pay against the former employer is limited. It generally covers only the period between dismissal and the employee's entry into the new employment relationship.
This can be economically important.
If the employee does not use this special declaration but ends the old employment relationship in another way, different rules may apply. In particular, it must be checked whether and to what extent income from the new employment relationship is credited.
What if I want to return to the former employer?
If the employee decides to continue the old employment relationship, they must generally resume work for the former employer.
If the employee is still bound to the new employer, they usually have to end the new employment relationship, for example by ordinary resignation or by mutual agreement.
There may be a transition period. If the employee terminates the new employment relationship without delay and in accordance with the applicable notice period, it is not automatically a breach of duty if they can only return to the former employer after that notice period has expired.
Nevertheless, this situation should be coordinated carefully.
Difference from court dissolution
A new job during a dismissal protection case is not the same as a court dissolution application.
With a court dissolution application, the employment relationship is dissolved by the court against severance pay if special requirements are met.
The rule discussed here concerns a different situation: the old employment relationship continues after the successful court case, but the employee has meanwhile entered into a new employment relationship. The employee may then refuse to continue the old employment relationship within strict deadlines.
Should I take a new job during a dismissal protection case?
That depends on the individual case.
A new job may make sense because dismissal protection proceedings can take a long time and no one knows for certain how the case will end.
At the same time, employees should understand the consequences a new employment contract may have if they later win the case.
Important points include:
• start date of the new employment relationship,
• notice periods in the new employment contract,
• salary in the new job,
• possible crediting against default-of-acceptance pay,
• whether returning to the former employer is realistic,
• deadline for a possible refusal declaration,
• overall strategy in the dismissal protection case.
What should employees check?
Employees should check in particular:
1. Is a dismissal protection claim already pending?
2. Has the new employment contract already been signed?
3. When does the new job start?
4. What is the salary in the new job?
5. What notice period applies with the new employer?
6. Does the employee want to return to the former employer at all?
7. When does the judgment become final?
8. Is the one-week deadline for the refusal declaration running?
9. What salary claims against the former employer exist?
10. Will new earnings be credited?
11. Would a severance settlement be more sensible?
12. Should a precautionary declaration be prepared?
Conclusion
Employees who take a new job during a dismissal protection case and later win may face a difficult situation.
The old employment relationship may continue, while a new employment relationship has already been entered into.
German law gives employees a choice in this situation. Anyone who wants to stay with the new employer must act quickly. The continuation of the old employment relationship generally has to be refused in writing within one week after the judgment becomes final.
This short deadline and the possible consequences for default-of-acceptance pay make timely legal advice particularly important.