Reinstatement claim: how to get your old job back

Can you return to your former job after being lawfully dismissed? In German labor law, the answer is yes – but only in rare cases. The so-called “reinstatement claim” was developed by the Federal Labour Court (BAG), mainly for operational (betriebsbedingte) dismissals where circumstances change before the notice period ends. This guide explains when a reinstatement claim exists, when it fails, which deadlines apply, and why it is different from a dismissal protection claim.

Key takeaways

• A reinstatement claim exists only in exceptional cases – it is based solely on case law, and the bar is rather high.
• It typically applies after a valid operational dismissal, if the underlying business reasons disappear before the notice period expires.
• If the conditions are met, employees can file a reinstatement lawsuit, which results in a new employment contract.
• A reinstatement claim is not the same as a dismissal protection claim: the former assumes the dismissal is already valid.
• No claim exists if circumstances change too late, in small businesses, in insolvency, or if a severance settlement has already been accepted.

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.

Examples of successful reinstatement claims

• Department closure reversed: A department was to be shut down for business reasons. The employee did not file a dismissal protection claim, so the dismissal became effective. Before the notice period expired, business was back and the employer decided to keep the department. The reinstatement claim was lawful.
• Planned business closure cancelled due to buyer: A company was supposed to close. After dismissal notices were issued (but before the end of the notice period), a buyer was found and a business transfer was agreed. The reinstatement claim was lawful.
• Business transfer decided before deadline, executed later: Even if the transfer is completed only after the notice period, the claim exists if the decision to transfer happened 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.