Right to reinstatement
The right to re- employment is defined as the right of an employee to conclude a new employment contract under the conditions of the previously effectively terminated employment contract. A right to re-employment can only be considered if, after effective termination, the circumstances relevant to the termination change in such a way that the reason for termination practically “does not apply”. In these cases, the loss of the job no longer appears justified in retrospect.
The right to reinstatement in the event of a suspected dismissal has been recognized in case law for decades , for example in the event that an employee is given extraordinary (immediate) notice on suspicion of serious misconduct, typically a criminal offense. If the employee's innocence turns out later on the basis of new findings, there is a right to reinstatement.
Since a fundamental decision from 1997, the Federal Labor Court has consistently recognized the right to reinstatement, even in cases of ordinary termination, if the reason for termination given at the relevant point in time (receipt of termination) no longer applies. Since then , numerous decisions on the right to re- employment have been made on the operational dismissal , the main case of ordinary dismissal. On the other hand, it has not been conclusively clarified under what strict conditions a right to re-employment exists, under what restrictions it is to be recognized and what function it fulfills in the employment protection law.
Case law of the BAG
- Claim for re-employment after transfer of business
- Reinstatement after business transfer in bankruptcy
