No "default of acceptance wage" during the notice period if the employee has caused the termination?

Facts of the case

The employee had most recently worked as a senior consultant since 1 November 2019. In a letter dated 29 March 2023, the company terminated the employment relationship in due time with effect from 30 June 2023 and irrevocably released the employee from his duties with continued payment of his contractual remuneration and deduction of leave. The letter also stated that any other income earned during the release period after any holiday and compensatory time off entitlements had been settled would be offset against current remuneration entitlements. The employee filed an action for unfair dismissal and the chamber hearing was scheduled for 29 June 2023. He registered as a jobseeker with the employment agency at the beginning of April.

Starting on 12 May 2023, the company sent the employee several letters with job descriptions containing a total of more than 40 job advertisements. At the same time, it asked him to apply for employment accordingly and exempted him from any restrictions on competition. The employee applied for a job advertisement for the first time on 28 June 2023, responding to a total of seven of the offers. The employer refused to pay the remuneration for June 2023 and the employee sued. The company claimed that the employee had maliciously failed to earn money elsewhere.

The decision

In the opinion of the Federal Labour Court, the employer was in default of acceptance due to the unilaterally declared leave of absence during the notice period. It therefore owed remuneration because it had not accepted the work performance of the dismissed employee. However, the employee does not have to take  account unearned income from other sources that could reduce this entitlement to remuneration for default of acceptance . The fictitious crediting of unearned income and the resulting disadvantage for the employee is only justified if the employee has remained inactive contrary to good faith (Section 242 of the German Civil Code, BGB). Because Section 615 sentence 2 BGB contains an equitable provision, the scope of the employee's obligation to acquire other employment cannot be assessed separately from the employer's obligations. The company had not demonstrated that it could not reasonably be expected to employ the employee - particularly during the notice period. Based on this, there was no obligation for the employee to enter into another employment relationship before the end of the notice period in order to contribute to the financial relief of the company.

Consequences for practice

The exact reasons for the decision are not yet available. However, the BAG clarified that employees do not generally have to enter into an employment relationship with another company during the notice period. As a result, no further active application efforts need to be made during the notice period.

However, this does not apply without restriction - as the Federal Labour Court also indicated that this could be assessed differently in good faith if the employer cannot reasonably be expected to employ the employee. Particularly in the case of dismissals for behavioural reasons, there may be good arguments in favour of employees being obliged to take up other employment during the notice period. One point of reference may be if the relationship of trust has been permanently disturbed.

Practical tip

In order to minimise the risk of delayed acceptance pay in these cases, companies are still well advised to send job offers to dismissed employees during the notice period. If compensation for delayed acceptance is claimed or announced, the employee should also be informed about the placement proposals submitted by the employment agency and their own application efforts. If employers wish to avoid payment during the notice period, special circumstances must be presented that argue against employment.