An employee receives notice of dismissal, is placed on leave and brings an action for unfair dismissal. Even after the notice period has expired, the employer does not continue to employ the employee. During this period of uncertainty, in which the validity of the dismissal has not yet been determined, wages for default of acceptance may accrue. How employers can mitigate this risk and what employees should bear in mind:<\/p>\n
What are wages for default of acceptance?<\/strong><\/p>\n Wages for default of acceptance (Section 615 of the German Civil Code (BGB)<\/a>) refer to the remuneration to which an employee is entitled even though they have not worked, because the employer has not accepted their work. If the employer gives notice of termination and does not continue to employ the employee after the notice period has expired, they may be in default of acceptance. If it later transpires that the notice of termination was invalid, the employee is not required to make up for the lost working hours. However, the employer must, in principle, pay the remuneration for the intervening period. In accordance with Section 11 of the Employment Protection Act (KSchG)<\/a>, the employee must, however, have deducted from this remuneration any earnings they have received or could have earned from other work, provided they did not maliciously refuse to accept work that was reasonable for them to undertake.<\/p>\n Special provisions apply whilst a notice period is still running. If the employer releases the employee from their duties following ordinary notice of termination, the employee is not, in principle, obliged to take up new employment before the notice period has expired (Federal Labour Court judgement of 12 February 2025 \u2013 5 AZR 127\/24<\/a>).<\/p>\n How employers can minimise this risk<\/strong><\/p>\n Employers can make use of the offsetting provision in Section 11 of the German Employment Protection Act (KSchG)<\/a>: it is becoming common practice for employers to search job portals or to commission service providers or solicitors to search for suitable vacancies. These are sent to the employee with an invitation to apply. However, the employer\u2019s aim in doing so is not to assist the employee in their job search. Rather, the employer wishes to be able to argue at a later date that the employee could have applied for these vacancies and thereby earned interim earnings. In this way, the employer can reduce or completely ward off the employee\u2019s claim for damages arising from default of acceptance. The Federal Labour Court (BAG) also clarified this in its judgement of 7 February 2024 (5 AZR 177\/23<\/a>). According to this judgement, a failure to apply for a specifically identified, actually available and reasonable vacancy may, as part of the overall assessment, justify the objection that the employee maliciously failed to earn alternative income.<\/p>\n Is an employee obliged to apply for all job vacancies?<\/strong><\/p>\n When job vacancies are sent to employees, they often worry that they may lose their entitlement to wages for delay in acceptance because they have \u2018maliciously\u2019 failed to earn income elsewhere. An employee is deemed to have maliciously failed to earn income elsewhere if they intentionally refuse work without sufficient reason or intentionally prevent work from being offered to them.<\/strong> It follows that there is no absolute obligation to apply for every job vacancy sent to them. The decisive factor is whether the specific post is actually available and reasonable for the employee to accept. In this context, the burden of proof is also significant: in principle, the employer must demonstrate and prove that a specific, reasonable and feasible employment opportunity existed. However, the employee must explain how they dealt with the job offers sent to them. Suitable offers should therefore not be ignored; in the case of unsuitable or unreasonable positions, it is advisable to document the reasons for not applying.<\/p>\n","protected":false},"excerpt":{"rendered":" An employee receives notice of dismissal, is placed on leave and brings an action for unfair dismissal. Even after the notice period has expired, the employer does not continue to employ the employee. During this period of uncertainty, in which the validity of the dismissal has not yet been determined, wages for default of acceptance […]<\/p>\n","protected":false},"author":3,"featured_media":1172,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1174","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-unkategorisiert"],"acf":[],"_links":{"self":[{"href":"https:\/\/ebl-legal.de\/en\/wp-json\/wp\/v2\/posts\/1174","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ebl-legal.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ebl-legal.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ebl-legal.de\/en\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/ebl-legal.de\/en\/wp-json\/wp\/v2\/comments?post=1174"}],"version-history":[{"count":1,"href":"https:\/\/ebl-legal.de\/en\/wp-json\/wp\/v2\/posts\/1174\/revisions"}],"predecessor-version":[{"id":1175,"href":"https:\/\/ebl-legal.de\/en\/wp-json\/wp\/v2\/posts\/1174\/revisions\/1175"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/ebl-legal.de\/en\/wp-json\/wp\/v2\/media\/1172"}],"wp:attachment":[{"href":"https:\/\/ebl-legal.de\/en\/wp-json\/wp\/v2\/media?parent=1174"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ebl-legal.de\/en\/wp-json\/wp\/v2\/categories?post=1174"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ebl-legal.de\/en\/wp-json\/wp\/v2\/tags?post=1174"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}