Definition
If a notice of termination is invalid, the employment relationship is deemed never to have ended. The employee is entitled to continued employment and to back pay of their full salary for the duration of the legal proceedings – less any income they have earned or could have earned elsewhere in the meantime. If the employer has given notice without the employee actually being able to continue working, the entitlement to remuneration nevertheless remains. The court may, at the request of either party, terminate the employment relationship in return for severance pay, despite the notice being invalid.
Specialist solicitor in employment law
With over 15 years’ experience in employment law
Classification under employment law
If a notice of termination is invalid, the employment relationship continues. The employee is entitled to continued employment and back pay of the outstanding remuneration (wages for delay in acceptance, Section 615 of the German Civil Code) – for the entire duration of the legal dispute.
Distinction from related terms
Action for unfair dismissal: The invalidity of a dismissal is usually established by an action for unfair dismissal. Without such an action, the dismissal is often deemed valid.
Wages for default of acceptance: If the dismissal is invalid, a claim for remuneration may exist even though no work has been performed. This claim is referred to as wages for default of acceptance.
Practical tip
Wages for the period of default can add up over months or years – even if you have found a new job in the meantime (with your new income taken into account). This gives employees in ongoing legal proceedings considerable bargaining power, which should be used strategically.
