BAG: News on wages for default of acceptance

In its ruling of February 7, 2024 (case no. 5 AZR 177/23), the Federal Labor Court further specifies its case law on malicious omission in the context of claims for default of acceptance and thus provides employees and employers with further important information on how to deal with claims for default of acceptance.

Facts of the case

Following an invalid dismissal by the employer that had been legally established, the employee demanded compensation from the employer for the duration of the unfair dismissal proceedings. Although the employee had registered as a jobseeker with the employment agency in due time, he informed the agency that he did not wish to receive any job offers and that he would inform a potential employer of the ongoing dismissal protection proceedings with his last employer and his wish to continue working there when applying for a job - even before a potential interview. As a result, the employment agency did not make any job offers to the employee for more than a year. The employee did not make any independent efforts to find other employment either. The employer refused to pay the employee wages for default of acceptance, arguing that the employee had maliciously failed to earn money elsewhere.

Decision of the BAG

The BAG ruled in favor of the employer. The employee was not allowed to deliberately prevent him from being offered reasonable work. In the specific case, however, in the opinion of the BAG, the employee's statement to the employment agency was the cause of the fact that the agency had not made any job placement proposals to him for over a year. In this respect, the employee had wanted to prevent his applications from being shortlisted from the outset. Such an - unsolicited - reference to ongoing dismissal protection proceedings with the previous employer even before a job interview would not be in line with the behavior of a person (actually) seeking employment.

In addition, the BAG clarifies that employers have the option of communicating suitable vacancies to employees. However, the employer is required to name specific job advertisements. According to the BAG, simply referring to the fact that the unemployment rate has been low for years is not sufficient. The employer also bears the burden of demonstrating and proving in a default of acceptance process that it has sent the employee job offers. The employee must then explain what he has done.

PBC legal takeaways:

The case law on default of acceptance wages is being further consolidated. It has long been clear that employees are not (or no longer) well advised to "simply put their feet up" during a dismissal dispute. The recent ruling by the Federal Labor Court also shows that employees should also refrain from thwarting placement efforts by the employment agency if they want to claim default of acceptance wages from their previous employer. Employers, on the other hand, are increasingly being offered effective strategies to minimize the risk of default of acceptance wages, which should be considered at the time the notice of termination is given, but at the latest after the notice period has expired.