Returning to Work After a Dismissal: Why Silence From the Employee Isn't Enough
Published on 08/11/2026 at 08:31 | Redaktion boerse-global.de
The burden of restarting an employment relationship after a disputed termination rests squarely on the employer's shoulders. Employees who receive a dismissal notice are under no obligation to show up at the workplace unprompted, even if they believe the termination to be unlawful. Only a clear, unambiguous instruction from the company can revive the duty to perform work.
That principle was at the heart of a ruling delivered by the Hessian Regional Labour Court on 9 January 2026 (case number 10 SLa 615/25), which has now drawn attention in legal circles for its practical implications.
Acknowledging Invalidity Changes the Legal Landscape
The case that reached the Frankfurt-based court involved an employer who had conceded that a previously issued dismissal was ineffective. Alongside that admission, the company explicitly asked the affected worker to resume their duties. The court found that this combination — a recognition of invalidity plus a direct request to return — was enough to reactivate the employment obligation, even while a dismissal protection lawsuit was still pending.
Under those circumstances, the employee could no longer hide behind the argument that the legal proceedings had not yet concluded. The judge's reasoning makes clear that a serious invitation from the employer ends the period during which the worker is released from their performance obligations. In other words, the mere existence of a court case does not create a permanent shield against having to come back to work.
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When Refusal Leads to Dismissal
The ruling also spells out the consequences for those who ignore a lawful return request. In the underlying dispute, the employee stayed away from the workplace despite the employer's invitation. That prompted a formal warning. When the warning failed to change the worker's behaviour, the company moved to terminate the employment relationship without notice.
The Hessian court classified this pattern as persistent refusal to work — a serious breach of contractual duties that justifies an extraordinary dismissal. For employees, the takeaway is blunt: if the original termination has been admitted as invalid and a warning has been issued, continuing to stay away carries the real risk of being fired on the spot.
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Higher Court to Have the Final Say
This decision, however, is not the end of the road. An appeal has been lodged with the Federal Labour Court in Erfurt, where the case will be heard under docket number 2 AZR 67/26. Legal observers are watching closely, as the federal judges could provide definitive guidance on how binding a return-to-work request is while dismissal protection litigation remains unresolved.
Until that higher ruling lands, the Hessian judgment offers a practical roadmap for employers navigating post-termination disputes. The message from the court is straightforward: when asking a worker to come back after an invalidated dismissal, the request must be explicit, serious and leave no room for misinterpretation. Vague hints or informal suggestions will not suffice — the legal foundation for reinstating the duty to work depends on precise communication.
