Definition
The right to continued employment entitles the employee to continue working at the company following a successful judgment at first instance or where the dismissal is manifestly invalid – until the proceedings have been finally concluded. If the employer fails to comply, substantial administrative fines may be imposed. In practice, this right is often asserted directly in the action for unfair dismissal, which significantly increases the pressure on the employer.
Specialist solicitor in employment law
With over 15 years’ experience in employment law
Classification under employment law
Following a successful judgment at first instance or where the dismissal is manifestly invalid, the employee is entitled to continued employment in practice until the proceedings are finally concluded (Federal Labour Court, Grand Chamber, 27 February 1985). This right can be enforced before the employment tribunal by way of an interim injunction.
Distinction from related terms
Action for unfair dismissal: The right to continued employment often arises in connection with an action for unfair dismissal. The action seeks a declaration that the dismissal is invalid, whereas the right concerns the actual continuation of employment.
Wages for default of acceptance: If the employee is not retained in employment despite having a valid claim, remuneration may be claimed without the performance of work. Wages for default of acceptance are thus the financial consequence, not the right to continued employment itself.
Practical tip
The right to continued employment is a powerful bargaining tool: if an employer is ordered to continue employing an employee and fails to do so, they face substantial fines. This significantly alters the dynamics of negotiations – and often leads to a swift agreement on a higher severance payment.
