Recall after garden leave is a situation where an employer releases an employee from work and later asks them to return. Many employees wonder whether such a recall is lawful and what rights they have during the suspension period.
Recall after garden leave: when is it lawful?
Such a recall is only legally possible if the release was revocable and the employer has effectively reserved the right to call the employee back. If the release was declared irrevocable or no such reservation exists, the recall is generally ineffective.
In practice, employers often issue a release without any reservation and later, due to a change in workload, want to deploy the employee again. Without a clear legal basis, the employer remains bound by the release declaration, making the recall ineffective.
Your rights during a unilateral garden leave
Important to know: a unilateral release by the employer is only effective in certain cases. Without a contractual basis, the employer cannot simply release you from work. An exception exists if the release is connected with a dismissal and the employer has a legitimate interest in removing you from the workplace – for example to avoid disturbances. In such a case the release is usually irrevocable.
- You must continue to receive your salary, even if you do not work – the employer falls into arrears under § 615 BGB (acceptance delay) if he does not call for your work performance.
- During the release you may take up other employment, provided the employer does not object and no non‑compete agreements exist.
- You have a claim that your work performance is actually called for – provided the release is not effective.
If the employer releases you without legal grounds, you can sue for continued employment. In practice, however, an amicable solution is often preferable because an ongoing legal process strains the relationship. In this case, consult a lawyer specialising in employment law to weigh your options.
When is a recall effective?
A recall after a garden leave is only effective if the leave was revocable and the employer properly explained the recall. This means: the employer must inform you that the garden leave ends and you are to resume work. Without such a statement the leave remains in place.
It becomes problematic if the employer first placed you on irrevocable garden leave and then wants to recall you because circumstances have changed. In this case the recall is regularly ineffective. The employer cannot withdraw from his own irrevocable release. An exception could only exist for very serious reasons such as a plant shutdown or an emergency – but even then the circumstances must be extraordinary.
In practice it also occurs that the employer links the garden leave with a dismissal and later pursues another solution, for example because the parties agree on a settlement agreement. In this case you should check carefully whether the recall is part of a new agreement or whether you are merely expected to continue working under the old conditions. Clarify such points in writing.
Practical steps: How you should react to the recall
If you have been placed on garden leave and are suddenly recalled, you should not immediately agree or refuse, but proceed systematically:
- Check your garden leave notice: Was it given in writing? Does it contain a revocation reservation? If not, the leave is likely irrevocable.
- Request a written recall confirmation: Ask for the recall in writing, with date and details of the work scope.
- Consult an employment lawyer if uncertainties remain. A lawyer can assess whether the recall is effective and what consequences an objection would have.
- Document everything: Keep emails, letters and notes from conversations. This is crucial for any possible legal dispute.
If you are sure that the garden leave was irrevocable, you can refuse the recall. You are then not obliged to return to work. An employer who insists on the recall risks a warning or dismissal – but you should not take this lightly. A summary dismissal for refusing to work could loom if you resist and the employer regards the recall as effective.
Better is to seek the conversation and look for an amicable solution. Perhaps a severance payment can be negotiated if the employer actually has no further use for you. A severance after release is a common negotiation result – yet it is not a legal entitlement.
If you are certain that the garden leave was irrevocable, you can refuse the recall after garden leave.
In practice, a recall after garden leave is only effective if the employer properly communicated the end of the suspension.
Dismissal protection claim and garden leave: The connection
A garden leave often precedes a dismissal. The employer wants to remove the employee from the workplace to avoid conflict or because he plans a dismissal for operational reasons. In this case the leave is usually irrevocable and lasts until the end of the notice period. A recall is then excluded.
If you have received a dismissal, the garden leave is frequently already part of the dismissal letter. In this case you must strictly observe the three‑week deadline to file a dismissal protection claim. Only then can you preserve your rights – for example to continued employment or a severance payment. The dismissal protection claim also affects the garden leave: if the dismissal is ineffective, the leave ends and you must be reinstated.
An interesting point: if the employer places you on garden leave and at the same time issues a dismissal, he cannot later rely on a recall to overturn the dismissal. That would be a contradiction, which labour courts do not accept. In practice you should therefore assume that a dismissal combined with garden leave ends the employment relationship and act accordingly.
If you are unsure whether the dismissal is effective, filing a dismissal protection claim may be worthwhile. However, you must bear in mind that such a claim involves costs and risks. A litigation funder like RightStark can help cover the financial risk – more information is available on our website.
Conclusion: Securing your position in the conflict with the employer
Being placed on garden leave and then recalled is not automatic. As an employee you have clear rights if your employer wishes to re‑engage you after a garden leave. The decisive factor is whether the leave was revocable or irrevocable and whether the employer has properly explained the recall. When in doubt you should seek legal advice and avoid hasty actions.
Our recommendation: examine your garden leave notice carefully, demand clarity from the employer and document every step. If you have received a dismissal, keep the deadlines for the dismissal protection claim in mind. And if you are unsure whether a lawsuit is worthwhile, a litigation cost financing by RightStark can be an option – we assess your case and assume the cost risk in the event of success, so that you can negotiate without financial pressure.
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.