Employment claim

Employment claim / Beschäftigungsanspruch

September 01, 2023

During the existing employment relationship, the employee is entitled to a general employment claim based on sections 611 a, 613 of the German Civil Code (BGB) in conjunction with section 242 of the German Civil Code (BGB), the fulfilment of which is the content of a so-called collateral duty of the employer (i.e. it is not in an exchange relationship between the parties to the employment relationship). The prerequisite for the claim is that the employment relationship is undisputedly valid, i.e. it has been validly established and not terminated, and that no overriding interests of the employer worthy of protection oppose the employment (e.g. in case of fear of endangering trade secrets or under the conditions of section 626 BGB as a provisionally milder means compared to an extraordinary dismissal).

The claim may be excluded if employment of the employee is not or no longer possible, e.g. due to a lack of orders or a reorganisation based on an entrepreneurial decision - but the employer bears an increased burden of proof for this. If the impossibility of employment is irrelevant because the underlying business decision was obviously unobjective, unreasonable or arbitrary, the employee bears the burden of proof.

In principle, the right to employment also exists during the current notice period after an ordinary termination, although in this case there is often the possibility of (irrevocable) release by the employer on the basis of a contractual agreement.

In addition, the employee may have a so-called claim for continued employment after the expiry of the notice period of an ordinary termination or after receipt of an extraordinary termination, which may exist until the legally binding conclusion of the dismissal protection proceedings. The prerequisite for this is that the dismissal is invalid and that there are no overriding interests of the employer that are worth protecting. As a rule, the claim therefore exists if the employee wins at first instance in the dismissal protection proceedings, but according to case law also in court disputes on the existence of a fixed-term employment contract or a termination agreement, and has filed a corresponding application for continued employment.

During ongoing unfair dismissal proceedings, the employee may be entitled to continued employment if the dismissal is obviously invalid, e.g. because the works council was not involved at all (section 102 (1) sentence 3 BetrVG) or the dismissal clearly violates section 17 Maternity Protection Act (MuSchG).

Only the right to continued employment under section 102(5) of the Works Constitution Act (Betriebsverfassungsgesetz - BetrVG) is regulated by law, according to which the employer must, at the employee's request, continue to employ the employee after the expiry of the notice period until the legally binding conclusion of the dismissal protection proceedings already commenced, if the works council had duly objected to the ordinary dismissal (section 102(3) BetrVG).

The content of the claims is to employ the employee in accordance with the agreed activity if the employee so requests. The employer is in breach of his employment obligation if he employs the employee in a manner other than that agreed or if he gives the employee an invalid leave of absence. In the event of a release, it is then advisable for the employee to notify his or her readiness to work so that he or she can prevent economic losses by claiming a default of acceptance wage within the meaning of section 615 sentence 1 BGB. According to this provision, the employer must also compensate the employee if he is in default of accepting performance - i.e. the employee has offered his performance in an employment relationship that can be fulfilled and the employer (regardless of fault) has not accepted the possible performance of the work.

Enforcement in court

In principle, the general employment claim (as an essential ancillary performance obligation of the employer) can be asserted before the labour courts in the context of an action for performance for future performance or an action for a declaratory judgement.

Another possibility of enforcement is to apply for a temporary injunction in interim legal protection proceedings. Interim legal protection is also referred to as urgent legal protection and serves the purpose of temporarily securing claims of the applicant, the enforcement of which would otherwise be jeopardised. The prerequisite for this is the existence of a claim for injunction (the claim for continued employment to be secured) and a ground for injunction (urgency of the matter, enforcement jeopardised without an injunction). When asserting a claim in interim relief, it is predominantly assumed in case law that the mere existence of the claim for continued employment does not constitute grounds for an injunction. The fact that the claim for continued employment is typically accompanied by a loss of rights due to the passage of time, because the performance of the work cannot be made up for, does not in itself justify a ground for injunction.

In this respect, according to case law, it is a prerequisite that there is an increased interest in employment, namely that the employee is adversely affected by the non-employment, which goes beyond the interest in the fulfilment of the employment claim. This is affirmed, for example, in the case of disproportionate disadvantages caused by the non-employment, the loss of qualifications required to maintain opportunities on the labour market, the information of employees or business partners about the employer's release from work (danger of loss of reputation/market value).

The claim for continued employment must already be asserted in the form of an application in the action for protection against dismissal, so that as a rule enforcement by applying for an interim injunction is out of the question (except if asserted before the end of the action for protection against dismissal, e.g. in the case of obviously invalid dismissal).