Reinstatement claim: how to get your old job back

Can you get your old job back after being dismissed? In German labour law, this is sometimes possible through a reinstatement claim (Wiedereinstellungsanspruch). The claim was developed by the Federal Labour Court (BAG) and mainly applies to operational dismissals where the business reasons for the dismissal disappear before the notice period ends. Although such cases are rare and subject to strict conditions, they can occur when a restructuring is cancelled, a department closure is reversed, or a business transfer takes place. This guide explains when a reinstatement claim exists, which requirements must be met, and how it differs from a dismissal protection claim.

Requirements for a reinstatement claim

The reinstatement claim is case law. The Federal Labour Court developed it to prevent unfair outcomes, esp. operational dismissals. It applies only in cases exemptions and only if the following conditions are met:

1. The employer has issued an operational dismissal.
2. The dismissal has become legally effective (e.g., no dismissal protection claim was filed, or it failed).
3. Before the notice period ends, circumstances change – so that the “urgent operational reasons” for dismissal no longer exist.
4. The employer has not made irreversible arrangements (e.g., binding restructuring commitments).
5. Re-employment is still reasonable for the employer.

If a dismissal protection lawsuit is still pending, a reinstatement claim is unnecessary. The employee can simply request continued employment in the existing lawsuit.

Good to know:
If a redundancy dismissal is based on the employer’s prediction that the employee cannot be retained after the notice period (e.g., due to the closure of the business), and this prediction proves to be incorrect during the notice period (e.g., because a business transfer takes place), the employee has the right to continue the employment relationship, provided the employer has not taken any final measures and continuation is reasonable for both parties.¹

Examples of successful reinstatement claims

• Department closure reversed: The company planned to shut down a department for business reasons. The employee did not file a dismissal protection claim, so the dismissal became effective. Before the notice period ended, business picked up, and the employer decided to continue the department. The reinstatement claim was lawful.
• Planned business closure cancelled due to the buyer: The company planned to close. After issuing dismissal notices (but before the notice period ended), the company found a buyer and agreed on a business transfer. The reinstatement claim was lawful.
• Business transfer decided before deadline, executed later: Even if the company completes the transfer after the notice period, the claim exists if the company decided to transfer before the period expired.

Legal consequence

The employer may voluntarily withdraw the dismissal, in which case the employment continues seamlessly. If not, the employee must file a reinstatement lawsuit. If successful, a new employment relationship is created – not the old one revived.

Examples of unsuccessful reinstatement claims

No reinstatement claim exists if:

• Circumstances change only after the notice period has ended.
• The employer is a small business or the employment lasted less than six months.
• The dismissal occurred during insolvency proceedings.
• The parties have already concluded a court or out-of-court severance settlement that fairly compensates the job loss.

Reinstatement after dismissal for personal reasons

Whether a reinstatement claim exists after a person-related dismissal (e.g., long-term illness) is disputed. The BAG has not issued a general rule. In one case, the court denied reinstatement because the employee’s health only improved after the notice period had expired. 

Reinstatement after dismissal for misconduct

The issue of reinstatement after conduct-related dismissal is also controversial. Courts usually reject it.
Exception: The BAG once upheld a reinstatement claim after a “suspicion dismissal” (Verdachtskündigung) when the employee was later acquitted in criminal court. Mere discontinuation of the investigation is not enough.

Reinstatement based on contractual agreement

Reinstatement can also result from contractual promises, e.g., in a termination agreement (Aufhebungsvertrag) or settlement. In that case, the right arises from the contract, not from case law.

Deadlines for asserting the reinstatement claim

There is no statutory deadline, but the claim can be forfeited (Verwirkung) if the employee waits too long and the employer can reasonably assume the matter is settled.

However, there is an important exception: In business transfers, the BAG requires the employee to assert the claim within one month after learning the decisive facts.

Burden of proof

The employee must prove that the original dismissal reasons disappeared before the end of the notice period.
Once established, the employer must prove that reinstatement is unreasonable due to binding decisions already taken (e.g., sale completion, new staffing).

Frequently asked questions (FAQ)

Act fast: even without a statutory deadline, waiting too long can forfeit your reinstatement claim. The sooner you assert it, the stronger your position.

1. BAG 27.02.1997 – 2 AZR 160/96 ↩︎