Tactics in the dismissal protection process: “Withdrawal” of a termination, but correctly!

Employers regularly commission a lawyer to represent their legal interests as part of a dismissal protection process. This raises the question for the advising lawyer, who must first assess the risk in advance of any negotiations with the other side, as to whether there are grounds for termination. If, after an initial assessment, one comes to the conclusion that, with regard to the question of the effectiveness of the termination, there is a high risk that the termination could be viewed as illegal and therefore ineffective, then the fundamental problem is that the employer after the expiry of the notice period falls into the so-called default of acceptance.

This means that the employee no longer has to come to work, but the employer must pay the remuneration. If an amicable solution cannot be reached at an early stage because both parties cannot agree on certain conditions or the employee simply wants to continue working, there is always a latent risk for the employer that he will have to pay additional remuneration after a lengthy process accrued since the termination of the employment relationship.
The question then arises as to how to reduce the financial risk for the employer as much as possible. In the event of an obviously ineffective termination, it may therefore make sense to “withdraw” the termination and no longer derive any rights from it.
However, the termination represents a so-called unilateral right. The consequence of this is that once the termination has been given and received, it can no longer be unilaterally withdrawn by the person making the declaration (employer). However, it follows from the employer's declaration that he no longer wants to derive any rights from the termination and is therefore taking them back and that he wants to provide the service he owes (assignment of work). However, in addition to the “withdrawal” of the termination, it is necessary that the employer declares with sufficient clarity that the employee should resume work at a specific time and at a specific location, BAG, judgment of May 24, 2017 5 AZR 251/16.
If he does not do this, the employer's default in acceptance does not end if the employee subsequently does not show up for work.
Conclusion:
Before “withdrawing” a termination, the employer should discuss the pros and cons of such an approach in detail with his legal advisor. In the withdrawal letter, special attention must be paid to stating the time and place so that the employee knows exactly when and where he has to return to work.