EMPLOYMENT LAW · BERLIN
Default of acceptance after dismissal in Germany: When employees may claim wages
After a dismissal, employees often focus on whether the dismissal is legally valid. Another important question can be whether wages can still be claimed for the period after the alleged end of the employment relationship.
If it later turns out that the dismissal was invalid, the employer may, under certain conditions, have to pay wages for default of acceptance. Put simply, this means that the employee could and would have worked, but the employer did not accept the work.
What does default of acceptance mean?
Default of acceptance means that the employer does not accept the employee's work even though the employment relationship continues and the employee is generally able and willing to work.
This becomes particularly relevant in dismissal protection proceedings. If the labour court finds that the dismissal did not end the employment relationship, the question arises retrospectively: what happens to the wages for the period in between?
Example
The employer terminates the employment relationship with effect from 31 May. The employee files a dismissal protection claim in time. Several months later, the court finds that the dismissal was invalid. In that situation, a claim for wages from 1 June onwards may come into consideration.
Does the employee have to expressly offer work after dismissal?
After a dismissal by the employer, the employee often does not have to expressly offer work again. By giving notice of termination, the employer usually makes clear that it does not want to continue employing the employee after the notice period.
However, the details matter. If the employee is unable to work, unwilling to work or fails to respond to a request by the employer, this may create problems.
Employees should therefore not simply wait after receiving a dismissal, but should carefully consider the next steps.
What can the employee receive?
In principle, the claim concerns the wages the employee would have received if they had continued working. Wages for default of acceptance are not an additional penalty or damages payment. They are linked to the contractual remuneration.
The employee does not have to make up for the missed work later. The employer cannot later demand that the months not worked be worked off.
Are interim earnings deducted?
Yes. If the employee works elsewhere after the dismissal and earns money, these interim earnings generally have to be deducted.
Example: The employee would have earned EUR 3,000 gross per month with the previous employer. During the dismissal protection proceedings, the employee earns EUR 2,000 gross per month with a new employer. These interim earnings may be deducted from potential default of acceptance wage claims.
The purpose is not to punish the employee. Rather, it is to avoid double earnings for the same period.
What does malicious failure to earn mean?
The situation becomes more difficult if the employee does not work at all. Then the question may arise whether the employee maliciously failed to earn income.
Put simply, this means that the employee knew of a reasonable job opportunity but failed to use it without a valid reason. In such a case, a hypothetical income may be deducted.
This does not mean that employees must accept any job. Whether a job is reasonable depends on the circumstances of the individual case. Factors may include the type of work, place of work, working hours, pay and the specific situation after the dismissal.
Should I register as seeking work or unemployed?
Regardless of default of acceptance, employees should take registration with the employment agency seriously after receiving a dismissal. This is already important for possible unemployment benefits.
It may also be relevant in connection with default of acceptance wages whether the employee made efforts to find reasonable employment. Employees who register as seeking work and properly consider job placement offers are generally in a better position than employees who remain completely inactive after dismissal.
Can the employer offer temporary continued employment during the case?
Yes, this may happen. During ongoing dismissal protection proceedings, the employer may ask the employee to return to work temporarily.
Whether the employee must accept or may refuse such an offer depends on the individual case. Continued employment may be reasonable, but not always. In particular, serious allegations, conduct-related dismissals or significant conflict may affect whether returning to work is reasonable.
Employees should therefore not reject such an offer too quickly, but should assess the possible consequences.
What applies during release from work?
Many dismissals are combined with a release from work. The employee is then not required to work until the end of the notice period, while remuneration initially continues to be paid.
Whether income from other work is deducted during a release period depends heavily on the wording. It can make a difference whether the release is revocable or irrevocable and whether deduction of other income has been expressly agreed.
Here, too, the exact wording is important.
Why are default of acceptance wages important in settlement negotiations?
In dismissal protection proceedings, default of acceptance wages can play an important economic role. The longer the proceedings last, the higher potential back pay claims may become.
This may also influence settlement negotiations. For employees, it is therefore important to understand that the case may not only be about the end of employment or severance, but also about wages for the period after the dismissal.
Conclusion
Default of acceptance after dismissal can be economically important for employees. If a dismissal is invalid, the employee may have a claim for wages for the period after the alleged end of the employment relationship.
At the same time, interim earnings, job search efforts, registration with the employment agency, release from work and possible offers of continued employment may have to be considered. Employees should therefore keep not only the three-week deadline in mind, but also the possible financial consequences of the period until the legal dispute is resolved.