Employer Withdraws the Dismissal: Do I Have to Return to Work?

No, at least not unilaterally once the employee has already received the dismissal.

A dismissal is a unilateral declaration. It becomes effective when it reaches the employee. From that moment, the employer generally cannot simply undo it alone.

An exception may apply if a revocation reaches the employee before or at the same time as the dismissal. In practice, this is rare.

If the employer later says “we withdraw the dismissal”, this usually does not mean that the dismissal has automatically disappeared. The statement is usually understood as an offer to continue the employment relationship on the previous terms.

In practice, the withdrawal usually means:

The employer no longer wants to rely on the dismissal and wants to continue the employment relationship.

The employee may accept this offer. But the employee does not automatically have to accept it.

This is important because the employee may have legitimate reasons not to accept continuation without further clarification.

For example:

• Trust may have been damaged by the dismissal.

• The employee may already have found a new job.

• Salary claims may still be outstanding.

• Returning may be problematic because of the circumstances of the dismissal.

• The employee may want to negotiate severance.

• The employee may want to apply for court dissolution in the dismissal protection case.

The employer’s statement therefore does not automatically settle all legal and financial questions.

No. The employee does not automatically have to accept a later withdrawal of the dismissal.

The employee may accept the offer, reject it or first seek legal advice.

However, it is important to keep the three-week deadline for a dismissal protection claim in mind. The employer’s statement that the dismissal is withdrawn does not always safely eliminate the deadline risk.

If it is not clearly agreed that the employment relationship will continue as if no dismissal had been issued, it should be checked whether a dismissal protection claim must still be filed as a precaution.

If the employer declares before a dismissal protection claim is filed that the dismissal is withdrawn, the next step largely depends on the employee.

If the employee clearly accepts the offer, the employment relationship may continue on the previous terms.

However, if the employee does not react and does not file a dismissal protection claim, the dismissal may be deemed effective after the three-week period expires. This can become problematic even if the employer previously stated that it no longer wanted to rely on the dismissal.

Therefore:

An employer’s withdrawal statement should not simply be understood as “everything is settled”.

If the employee agrees to continue the employment relationship, this should be clearly documented. If the employee is unsure or does not accept the dismissal, the claim deadline should not be missed.

The employer may also declare during an ongoing dismissal protection case that it withdraws the dismissal.

The same principle applies: the dismissal is not automatically removed unilaterally. The statement is usually an offer to continue the employment relationship.

Filing a dismissal protection claim is not automatically consent to the withdrawal of the dismissal. By filing the claim, the employee has initially only asserted that the dismissal is invalid.

The employee may therefore still have an interest in continuing the proceedings despite the employer’s withdrawal statement.

This may be relevant, for example, if:

• salary claims are still outstanding,

• returning to the employer appears unreasonable,

• the employee wants to apply for court dissolution,

• the employee has already found a new job,

• the parties are negotiating severance,

• the proceedings need to be ended properly.

If the employee accepts the offer to continue, the ongoing proceedings must be ended correctly, for example by settlement, declaration of settlement or another appropriate procedural step.

Default-of-acceptance pay is one of the most important issues when a dismissal is withdrawn.

If a dismissal is invalid and the employer does not employ the employee because of the dismissal, the employee may, under certain conditions, claim pay for the period during which they could not work.

But: withdrawal of the dismissal does not automatically answer all questions about default-of-acceptance pay.

It must be checked in detail:

• Did the employee accept the offer to continue?

• Had the employee already left the workplace after the dismissal?

• Did the employer specifically ask the employee to return to work?

• Was a specific workplace assigned?

• Was the employee ready and willing to work?

• Was there interim income from another job?

• Was the employment relationship really continued as if no dismissal had been issued?

• Is there an agreement on salary claims for the interim period?

This point is often economically decisive.

The simple statement “we withdraw the dismissal” is not always sufficient to end default of acceptance.

Why?

With the dismissal, the employer not only declares that the employment relationship should end. In practice, the employer also indicates that it will no longer accept the employee’s work after the termination date.

If the employee has already left the workplace after the notice period expired, it may therefore also be necessary for the employer to specifically ask the employee to return to work.

Such a request should be clear. The employee must know:

• When should I return?

• Where should I work?

• In which position?

• On what terms?

• Who is the contact person?

• How will the period since the dismissal be paid?

If such a specific request to return to work is missing, default of acceptance may continue in certain circumstances.

The situation may be different if the employee is still working during the notice period and has not actually left the workplace.

In that case, an additional request to “return” to work may not be necessary because the work has not yet been interrupted.

Employees must be careful in this situation. If the employment relationship continues after a withdrawal or acknowledgement and the employee is still in the workplace, it may be risky simply not to appear after the originally stated termination date.

The opposite is also important:

A request to return to work is not automatically a withdrawal of the dismissal.

The employer may ask the employee to work in order to avoid default-of-acceptance pay while still maintaining the dismissal.

It is therefore important to check exactly what the employer is saying:

• Is the employer withdrawing the dismissal?

• Is the employer acknowledging that the dismissal is invalid?

• Is the employer only offering process employment?

• Is the employer merely trying to avoid default-of-acceptance pay?

• Is the employment relationship supposed to continue as if no dismissal had been issued?

This distinction matters because it can affect work duties, salary claims and the dismissal protection case.

If the employee accepts the offer to continue the employment relationship, the employment relationship generally continues on the previous terms.

However, the following points should be clearly regulated:

• From when will work resume?

• Where will the employee work?

• What applies to the period since the dismissal?

• Will default-of-acceptance pay be paid?

• Are holiday, length of service and other rights fully preserved?

• How will an ongoing dismissal protection case be ended?

• Is there an agreement on costs?

• Is there a written agreement or court settlement?

The period between the termination date and the continuation agreement is particularly important. If continuation is agreed, the parties should expressly regulate whether and to what extent salary for the interim period will be paid.

Without a clear agreement, disputes may arise. Depending on the circumstances, an unconditional withdrawal or continuation may indicate that the employer accepts the consequences of the invalid dismissal for the past. However, employees should not rely on this without legal assessment.

If the employee rejects the employer’s offer to continue, this does not usually mean that the employee has resigned.

It initially means only that the employee does not accept the employer’s offer to remove the dismissal by agreement.

The employee may still have a legal interest in the dismissal protection claim. This is particularly relevant if the employee wants to apply for court dissolution or if a new job plays a role.

However, rejecting the offer may affect default-of-acceptance pay and remuneration in the individual case. It should therefore not be done without careful consideration.

A court dissolution application is particularly important. If returning to the employer is unreasonable, rejecting the offer to continue may be combined with an application for court dissolution of the employment relationship. In that case, the issue is not merely refusing to return, but asking the court to end the employment relationship by judgment against severance pay.

Won a Dismissal Protection Case: Severance Instead of Returning?

Many employees ask themselves after a withdrawal of the dismissal:

Can I refuse to return and still claim default-of-acceptance pay?

The answer depends heavily on the individual case. There is no simple automatic rule. What matters is that the employee does not have to accept an offer to continue too quickly.

If returning is unreasonable for the employee, a court dissolution application may be considered in the dismissal protection proceedings. The employee then argues that the dismissal is invalid, but that continuing the employment relationship is no longer reasonable. In that case, the court can dissolve the employment relationship against severance pay.

Filing a court dissolution application usually means that the employee does not accept the employer’s offer to continue the employment relationship. The employer cannot remove this right by later “withdrawing” the dismissal.

Default-of-acceptance pay also depends on the specific situation. The mere withdrawal of the dismissal does not always automatically end default of acceptance. If the employee had already left the workplace, an additional specific request to return to work may be required. The employee must be able to identify when, where and on what terms they are expected to return.

The situation may be different if the employee is still working during the notice period and the employer no longer maintains the dismissal before the notice period expires. In that case, an additional request to resume work may not be necessary.

It is also important that anyone claiming default-of-acceptance pay must credit interim earnings. Earnings maliciously failed to obtain may also be relevant. This does not mean, however, that the employee has to accept every theoretically possible job. What matters are concrete, reasonable employment opportunities and the circumstances of the individual case.

Employees should therefore not declare too quickly that they will return or waive claims. At the same time, simply ignoring a specific request to return to work can also be risky. A clear legal assessment is advisable: should the employment relationship continue, should a court dissolution application be filed, or should termination against severance be negotiated?

Default-of-acceptance pay does not mean that employees may remain completely passive.

Interim earnings are credited. Earnings maliciously failed to obtain may also become relevant.

However, malicious failure requires more than the mere possibility of finding work somewhere. It depends on concrete, reasonable employment opportunities and the circumstances of the individual case.

A generally favourable labour market is not automatically enough. The employer cannot simply argue in abstract terms that there were jobs somewhere. What matters is whether a concrete employee had, or could be attributed with knowledge of, a reasonable employment opportunity during the relevant period.

Employees claiming default-of-acceptance pay should therefore carefully document their conduct, any job placement proposals, whether applications were possible or reasonable, and whether interim income was earned.

Withdrawal of the dismissal does not automatically lead to severance pay.

If the employer withdraws the dismissal and the employee accepts continuation, the focus is generally on continuing the employment relationship.

Severance may still become an issue if the parties agree to end the employment relationship in exchange for severance. This often happens through a court settlement or an out-of-court agreement.

In special cases, a court dissolution application may also be considered if returning to the employer is unreasonable.

Won a Dismissal Protection Case: Severance Instead of Returning?

The situation is particularly sensitive if the employee has already found a new job after the dismissal.

The employer’s withdrawal of the dismissal cannot simply cause the employee to lose their rights.

It should be checked:

• Has the new employment contract already been signed?

• Has the new job already started?

• Does the employee want to return to the former employer at all?

• What notice period applies in the new job?

• What are the consequences for default-of-acceptance pay?

• Is refusal to continue the old employment relationship an option?

• Should the dismissal protection case be continued?

If the employee has meanwhile entered into a new employment relationship, the specific rule on refusing continuation of the old employment relationship may become relevant. The issue is whether the employee can refuse to continue the old employment relationship after winning the dismissal protection case.

The employer cannot simply remove this possibility by later withdrawing the dismissal.

New Job During a Dismissal Protection Case

That depends on exactly what has been declared and what situation the employee is in.

Important questions include:

1. Is the deadline for filing a dismissal protection claim still open?

2. Has a dismissal protection claim already been filed?

3. Did the employer only withdraw the dismissal or also specifically ask the employee to return to work?

4. Is the employee still in the workplace or already out of the business?

5. Has a clear workplace assignment been made?

6. Does the employee want to return at all?

7. Are salary claims still outstanding?

8. Is there already a new job?

9. Should severance be negotiated?

10. How will ongoing proceedings be ended?

A rushed reaction can be economically disadvantageous.

Employees should avoid in particular:

• missing the three-week deadline,

• assuming too quickly that the withdrawal means everything is settled,

• agreeing without clarifying outstanding salary claims,

• leaving unclear whether the employment relationship will continue,

• ignoring a specific request to return to work,

• rejecting a return to work without legal assessment,

• ending an ongoing dismissal protection case incorrectly,

• failing to consider the consequences of a new job,

• giving up default-of-acceptance pay too quickly,

• failing to document interim earnings or job placement proposals properly.

Once received, a dismissal generally cannot simply be withdrawn unilaterally by the employer.

If the employer nevertheless states that it withdraws the dismissal, this is usually an offer to continue the employment relationship. The employee can accept or reject that offer.

Default-of-acceptance pay is particularly important. Withdrawal of the dismissal does not automatically end salary claims for the interim period in every case. Among other things, it matters whether the employee accepts the offer, whether the employee had already left the workplace, whether the employer specifically asks the employee to return to work and whether the parties clearly regulate continuation.

Employees who do not want to return to the former employer should not accept the offer to continue too quickly, but they should not simply ignore it either. Depending on the case, a court dissolution application, severance negotiations, a new job or default-of-acceptance pay may become important.

Employees who receive a withdrawal statement from their employer should therefore quickly assess which reaction is appropriate. The three-week deadline, possible salary claims, the question of returning, a possible new job and the right litigation strategy all need to be considered.