Be careful when employees resign themselves

Many employees now know that they must file a complaint with the labor court within three weeks of receiving notice of termination from their employer. Otherwise the effectiveness of the termination will be fictitious. In short, employees who go to a lawyer and seek advice after the three-week period has expired are, if they have received written notice of termination, too late and will not be successful with a claim for protection against dismissal.

Three-week notice even if the employee resigns?
In the opposite case (self-termination by the employee), the question of whether the previously mentioned and legally standardized three-week period also applies generally does not arise, as the employee usually thinks in advance about whether he wants to end the employment relationship by giving notice not. Since the ordinary termination of the employee, unlike the termination of the employer (which assumes the applicability of the Dismissal Protection Act), does not require any reason for termination, the employee's formal termination of his own termination regularly ends the employment relationship, so that disputes in this constellation are rarely brought to court.
However, in a case currently decided by the BAG, the BAG had to take a position on the question of whether the three-week period also applies to the employee's own termination, see BAG, judgment of September 31, 2017, Ref. 2 AZR 57/17.
In the case cited, the peculiarity was that the employee who had given her own notice of termination claimed approximately nine months later that the employment relationship continued to exist. The background to this was that the employee claimed, according to her statements, that the voluntary termination was void due to a temporary disturbance in her mental activity at the time the termination was given.
Not applicable to employee termination
The BAG stated that the three-week period in Section 4 Sentence 1 KSchG did not apply to the employee's own termination. This is supported by both the legal system and the meaning and purpose of the legal regulation.
This meant that the plaintiff in the proceedings there was able to assert her grounds for invalidity even after three weeks had elapsed, without the effectiveness of her own termination being fabricated.
Conclusion
Employers are therefore not immune from employees claiming that their own resignation is invalid even after three weeks have elapsed. In addition to cases of mental illness, this is likely to be particularly important in the event of a termination being given under the influence of alcohol and/or drugs. If the employer has doubts about the effectiveness of voluntary termination, it is advisable to consult an expert.