In an eagerly awaited decision (BAG, judgment of 07.02.2024 – Ref. 5 AZR 177/23), the Federal Labor Court has specified the requirements for the assertion of claims for default of acceptance wages by employees after winning dismissal protection proceedings.
As a general rule, employees who win a dismissal protection lawsuit against their employer are entitled to subsequent payment of the interim remuneration, even though no work has been performed. This claim arises under the aspect of default of acceptance, §§ 293 ff. BGB. However, in accordance with § 11 KSchG, the employee must take into account what he has earned or – and this is the problem – could have earned through other work.
It will usually be easy to determine the actual interim earnings received, including unemployment benefit, especially as the employee is obliged to provide information on this according to case law. The question of what (notional) interim earnings the employee could have earned is more difficult to answer. The law restricts crediting to “maliciously” omitted and “reasonable” earnings. However, it has so far been largely unclear in which cases “malicious” conduct on the part of the employee is to be assumed. After the Federal Labor Court had already clarified in the past that the employee’s obligations include at least registering with the employment agency and responding to its job placement proposals, the highest German labor court, based in Erfurt, in its new decision considerably expands the requirements for employees in some cases. For example, the employee may not limit himself to the job advertisements specifically proposed by the Federal Employment Agency, but may also have to actively search for vacancies on its portal. The employee must also accept a low salary as long as the salary does not fall below the level of unemployment benefit. The extent to which the employee has shown himself to be open to interim employment vis-à-vis the employment agency and how serious his application efforts were must also be taken into account.
The Federal Labor Court has not yet made a final decision in this case, but has referred the case back to the Court of Appeal for further clarification of the facts. However, due to the detailed requirements of the Federal Labor Court, it is already clear that employers will now have significantly more options for objections to claims for delayed acceptance of wages.”
