When an employee wants continued employment after dismissal instead of being placed on paid leave, it comes down to actual employment. A recent ruling by the Wilhelmshaven Labor Court shows when such a claim can fail – and what rights employees have during an unfair dismissal proceeding.
On September 16, 2026, the 1st Chamber of the Wilhelmshaven Labor Court dismissed a doctor’s lawsuit against the Friesland Kliniken gGmbH. The doctor had sought a declaratory judgment that the clinic was obligated to actually employ him from March 9, 2026, to July 12, 2026. The court found no legal interest because this period had already passed.
The Case Before the Wilhelmshaven Labor Court: Doctor Loses Employment Claim
The plaintiff doctor had been placed on paid leave by the Friesland Kliniken. Apparently, criminal investigations were pending, which the clinic cited. The doctor, however, wanted not only money but also the opportunity to continue working. After the paid leave ended and notice of termination was given, he sued the clinic for a declaration that it should have employed him for the period in question.
The labor court dismissed the claim. The decisive point: the requested declaration concerned exclusively a period that had already ended by the time of the decision. Under established case law, such a declaration is only admissible if it could still produce concrete legal consequences for the present or future. The chamber found this was lacking.
Continued Employment After Dismissal: Why Employees Can Sue to Keep Working
In principle, every employee has a right to actual employment during an existing employment relationship. This means the employer cannot simply keep the employee at home if they are willing and able to work. This right derives from the general right of personality and the employment contract. It serves to protect the employee’s professional existence and personal development.
In practice, however, this right is often overridden by paid leave. As long as the employment relationship continues, the employer can release the employee from work duties – usually with continued payment of wages. Such paid leave is effective if contractually agreed or at least legally permissible. In unfair dismissal proceedings, paid leave is a common tool to keep the employee out of the workplace without immediately terminating the employment relationship.
If the employee wants to continue working despite paid leave, they can file a so-called employment claim. This is not about money but about actual continued work. However, such a claim only has prospects of success if the employment relationship still exists and the employee is genuinely willing and able to work. Additionally, there must be a legal interest in the declaration or performance.
Declaratory Interest for Past Claims: What the Court Requires
In the doctor’s case, it was not about ongoing employment but about a period that had already expired. The court clarified: a judicial declaration concerning employment lying exclusively in the past is only admissible if it could still produce concrete legal consequences for the present or future. It is not sufficient that the question might later be relevant for a reference, a testimonial, or damages claims.
The labor court argued that in such proceedings, the previous employment would merely be a preliminary question and would not conclusively prevent further litigation. In other words: even if the court determined that the doctor should have been employed, it would still not be settled whether this gives rise to a claim for damages or a better reference. These questions would have to be resolved in separate proceedings – and that is precisely what a declaratory action is not designed for.
This hurdle is important for employees to understand: an employment claim can only succeed if it targets a current or future period. If the period has already passed, you must demonstrate a concrete legal interest – for example, that without the declaration, another claim could not be enforced.
Rehabilitation as an Exception: When a Serious Infringement Exists
The doctor also argued that he had an interest in his rehabilitation. He sought a declaration that the paid leave was unjustified in order to restore his reputation. The labor court did not recognize this interest, however. It found that no such exceptionally serious infringement of the right of personality had occurred that would exceptionally justify an independent declaratory interest.
When such a serious infringement exists is not conclusively settled in case law. As a rule, simple paid leave is not enough. There must be a particular stigmatization or substantial reputational damage – for instance, if the employer publicly asserts false facts or treats the employee in a way that seriously jeopardizes their professional future. In the doctor’s case, the court considered that the Friesland Kliniken had pointed to the presumption of innocence despite the paid leave and had referenced the criminal investigations. The paid leave was therefore not a prejudgment but a precautionary measure.
For employees, this means: if you want to achieve a rehabilitative effect after paid leave, you must present concrete circumstances that go beyond normal paid leave. Mere speculation that the paid leave could later be interpreted negatively is not enough.
Paid Leave Instead of Termination: The Milder Means in Employment Law
The labor court emphasized that paid leave is the milder means compared to ordinary termination. This is a key point: as long as the employment relationship has not ended, the employer can release the employee from work duties without immediately issuing a termination notice. This paid leave can even continue during pending unfair dismissal proceedings.
From the employer’s perspective, paid leave is attractive because it does not end the employment relationship but removes the employee from the workplace. The employee continues to receive their salary but has no opportunity to contribute their labor. For the employee, this is often unsatisfactory because they can no longer prove themselves and may stagnate professionally.
Nevertheless, paid leave is not automatically unlawful. It can be based on operational reasons – for example, if the employer fears the employee might cause disruptions or disclose confidential information during the notice period. Even in cases of suspicion, paid leave is often the milder means because it does not prejudge the employee but only temporarily releases them from work duties.
Practical Tips: How to Respond to Paid Leave
If you are affected by paid leave, you should consider the following points:
- Check the legal basis: Read your employment contract and check whether a paid leave clause exists. Without such a clause, the employer cannot unilaterally place you on paid leave – unless they have good cause.
- Document the paid leave: Record in writing when and how the paid leave was issued. Note whether it was designated as ‘paid leave’.
- Object to the paid leave: If you want to continue working, you should expressly object to the paid leave. Do this in writing and explain your reasons. A simple objection can later be important to substantiate an employment claim.
- Maintain your readiness to work: Stay reachable and signal that you are available to perform work at any time. This documents your willingness to work.
- Seek legal advice: Paid leave can have far-reaching consequences – for your professional development, but also for potential severance claims. A specialist lawyer for employment law can assess whether the paid leave is lawful and what steps make sense.
If you are considering an employment claim, bear in mind: such a claim only makes sense if the employment relationship still exists and you genuinely want to continue working. If termination has already been issued, you must first file an unfair dismissal claim to preserve the employment relationship. Continued employment after dismissal can then be claimed as an ancillary relief – but only for the period until the notice period expires or until the proceedings are concluded with legal force.
Impact on Your Unfair Dismissal Proceeding: Continued Employment as Ancillary Relief
The Wilhelmshaven case shows how important it is to choose the right type of claim. If you want to continue working after a termination, you should not only sue for a declaration that the termination is invalid but also demand actual employment – as long as the employment relationship still exists. This so-called employment claim can be combined with the unfair dismissal claim. It seeks continued employment until the proceedings are concluded with legal force.
However, the Wilhelmshaven Labor Court’s ruling clarified: once the period for which you demand employment has expired, it becomes difficult to establish a declaratory interest. Therefore, you should file your employment claim as early as possible – ideally together with the unfair dismissal claim within the three-week deadline. Only then can you ensure that the court rules on a current employment obligation rather than a purely past one. Learn more about deadlines and potential pitfalls in unfair dismissal claims in our article on unfair dismissal claim after defeat.
If you are unsure how to proceed, legal advice is essential. An independent specialist lawyer for employment law can assess whether your claim has prospects of success and what motions you should file. RechtStark as a litigation funder can help you secure the costs of such proceedings – more information is available in our overview of unfair dismissal claims.
The doctor’s case also shows that paid leave is not automatically an injustice. As long as the employer respects the presumption of innocence and uses paid leave as the milder means, the declaratory interest required for a claim is often lacking. Anyone who wants continued employment after dismissal should therefore act early and know their rights precisely – because actual employment is a valuable asset, but not always enforceable in court.
Note: This article is for general information purposes only and does not replace individual legal advice. For a free initial assessment of whether litigation funding may be an option for your case, you can contact RechtStark.