In almost every dismissal protection case, a (preliminary) application for continued employment is also the subject of the court decision. The employer is then ordered to continue employing the employee, e.g. as a salesperson, until the dismissal protection proceedings have been legally concluded.
1. legal bases (in particular foreclosure)
Employees have a claim under the employment contract in conjunction with §§ 611a, 613 BGB, Art. §§ Sections 611a, 613, 242 of the German Civil Code (BGB) and Articles 1 and 2 of the German Basic Law (GG). In the event of a legal dispute regarding the validity of the termination, a state of suspense shall arise after the expiry of the notice period (in the case of extraordinary termination without notice accordingly immediately). In this state of suspense, the interests of the employer (employee should not return to the company) and the interests of the employee (employee wants to return to the company) are opposed. These interests must be weighed against each other in determining whether there is a right to continued employment.
Judgments of the labor courts are in principle provisionally enforceable pursuant to Section 62 (1) ArbGG. Therefore, no separate order is required in the operative part of the judgment (cf. Section 704 ZPO). Exception: Provisional enforceability is excluded in the judgment. The continued employment constitutes an unenforceable act, since it cannot be performed by a third party and depends exclusively on the will of the debtor. Thus, only a penalty payment § 888 ZPO is decisive for the enforcement of the compulsory execution.
2. reaction and defense possibilities of the employer
The employer can, of course, initially "accept" the continued employment and continue to employ the employee. He/she can also pay the penalty and not employ the employee.
In addition to these two options, however, the employer can also defend itself through legal means:
After the conclusion of the oral proceedings, he/she may apply under Section 62 (1) sentence 3 of the Labor Court Act (ArbGG ) to suspend enforcement of the provisionally enforceable first-instance judgment if one of the cases under Sections 707 (1) and 719 of the German Code of Civil Procedure (ZPO ) applies. However, this requires that the employer can credibly demonstrate a disadvantage which cannot be compensated and which would occur through the employment of the employee.
The employer also has the option - also only in the appeal proceedings - to file a motion for dissolution pursuant to Section 9 (1) sentence 2 KSchG and to combine this with the motion to discontinue pursuant to Section 62 (1) sentence 3 ArbGG. This has the advantage that a motion filed in a permissible manner leads to a significant shift in the balance of interests in favor of the employer during the enforcement proceedings.
In addition, there is still the possibility of issuing a further notice of termination after the conclusion of the first instance. Here, additional uncertainty can be created with regard to the continuation of the employment relationship, which must also be taken into account in the context of the weighing of interests. However, this only applies to terminations that are based on a new fact of life and are not obviously invalid.
The withdrawal of the appeal remains the last resort. This is because, since the provisionally enforceable application for continued employment only has effect until the final conclusion of the proceedings, the withdrawal of the appeal removes the basis for it.
In practice, the successful "defense" of continued employment claims can be a challenge for employers. However, with a well thought-out approach, it is worth considering in any case. Especially if the employee concerned is not to return to the company under any circumstances, the effort can be worthwhile.