Don’t worry about the correct defendant

Even if employees file their dismissal protection claim against the evidently wrong defendant, the claim may nevertheless have to be treated as validly filed against the actual employer according to a judgment of the Federal Labour Court (Bundesarbeitsgericht, BAG) dated February 20, 2014 (docket number: 2 AZR 248/13).


The Federal Labour Court decided that labour courts always have to take the real intention of the plaintiff into account. According to the judgment, the real intention of the plaintiff is always to file the dismissal protection claim against the actual employer and not against a third party. Therefore, the court found that if the statement of claim or any attachments clearly reveal that the actual employer is not the named defendant, the court has to construe the statement of claim as being filed against the actual employer. In this case, the court is at least required to make the plaintiff aware of the error. If the delivery of the claim to the actual employer is still made shortly (“demnächst”) after the filing of such claim, it will still comply with the three weeks’ deadline for the dismissal protection claim, even if three weeks have already elapsed since the delivery of the termination notice letter.


This judgment is a further extremely employee friendly decision of the Federal Labour Court, which is very unfortunate from an employer’s perspective.