Entitlement to continued employment
An entitlement to continued employment is a claim by an employee who is in dispute with his employer about the employment relationship , to continued employment until the existence or non-existence of the employment relationship has been clarified. A distinction is made between the individual employment law and the collective employment law entitlement to continued employment.
Entitlement to continued employment under individual labor law
The legal basis of the individual employment law entitlement to continued employment are § 611a , § 613 sentence 1, § 242 BGB i. V. m. Art. 2 para. 1, Art. 1 para. 1 GG . Section 242 of the German Civil Code (BGB) serves as a gateway for the indirect third-party effect of fundamental rights between private individuals. Although there is no special legal regulation, this claim developed on the basis of the knowledge that every employee has the right to continue to be employed during the process, as otherwise he is threatened with financial disadvantages.
Whether the claim actually exists must be determined by weighing up . The employee 's interest in continued employment and the employer's interest are weighed against each other. In principle, the employer's interests predominate, but case law has formed case groups in which the employee's interests regularly predominate:
- evident ineffectiveness of the termination , e.g. B. if the works council is not heard (or in the public service the staff council );
- special employment interest, e.g. B. with ongoing training of the employee;
- successful judgment in the proceedings regarding the existence of the employment relationship.
Entitlement to continued employment under collective law
The collective law entitlement to continued employment has its legal basis in Section 102 (5) sentence 1 BetrVG . The prerequisite is that the works council objected to the dismissal at the hearing and the employee has filed a dismissal protection suit and it is not an extraordinary dismissal i. S. d. § 626 BGB acts. In addition, in order to claim continued employment in accordance with Section 102 V BetrVG, the employee must also present his / her request for continued employment. In the public service, parallel provisions of the respective staff representation law apply , e.g. B. in the federal service § 79 BPersVG .
According to Section 102 (5) sentence 2 BetrVG, the employer can be released from the obligation to continue to employ the employee under certain circumstances. This is done at the employer's request. It is necessary that the employer asserts one of the reasons stated in Section 102 (5) sentence 2 BetrVG.
Individual evidence
- ↑ Dr. Gerhard Etzel; Dr. Ursula Rinck: KR - Community commentary on the Dismissal Protection Act and other regulations on protection against dismissal . Ed .: Gerhard Etzel; Peter Bader; Ernst Fischermeyer. 11th edition. Hermann Luchterhand, Munich 2016, ISBN 978-3-472-08640-6 , p. Section 102 BetrVG, Rn. 296 .
