BAG on Default of Acceptance
Obligation to job search during the notice period?
On February 12, 2025 (Case No. 5 AZR 127/24), the German Federal Labor Court (BAG) ruled that employees are not required to actively seek new employment during their notice period if the employer has released them from work despite the employee's existing right to continued employment. In this case, a malicious failure to seek alternative income is generally not considered to be applicable.
*where only the masculine form is mentioned in this article, the feminine / diverse form is also included
Federal Labour Court, verdict of 12th February 2025 -5 AZR 127/24 (PM)
Summary of the press release from the Federal Labor Court
The parties remain in dispute over the payment of default wages for June 2023.
The defendant employer had duly terminated the employment relationship as of June 30, 2023, and irrevocably released the plaintiff from work duties starting in April 2023. The plaintiff did not apply for the job openings sent by the defendant in May until the end of June. As a result, the employer refused to pay the plaintiff's remuneration for June, arguing that the employee should have applied for the suggested positions promptly and comprehensively.
The labor court initially dismissed the claim. However, upon the plaintiff's appeal, the regional labor court upheld the claim. The employer's subsequent appeal to the 5. Senate of the Federal Labor Court (BAG) was unsuccessful.
The BAG held that, due to the employer's unilateral release of the plaintiff during the notice period, the employer was in default of acceptance and, therefore, owed the agreed remuneration for the entire period in accordance with § 615 S. 1 BGB in conjunction with § 611a Paragraph 2 BGB. The employee was not required to offset any unearned alternative earnings under § 615 S. 2 BGB. The court emphasized that the employee had not acted maliciously within the meaning of § 615 S. 2 BGB. This provision serves as an equity-based rule and requires that the employee's obligation to seek alternative employment must be assessed in conjunction with the employer's corresponding duties. Since the employer failed to demonstrate that fulfilling the employee’s right to continued employment during the notice period was unreasonable, the plaintiff was not obligated to seek alternative employment before the end of the employment relationship to mitigate the employer's financial burden.
Conclusion & practical tip
With this ruling, the Federal Labor Court (BAG) clarifies that employees who are irrevocably released from work by their employer during the notice period are not obligated to immediately seek alternative employment. They are entitled to await the outcome of dismissal protection proceedings, provided a decision is reached before the notice period ends.
Employers should carefully consider whether an irrevocable release is necessary. If an employee is released, the employer is generally obligated to continue paying the agreed remuneration until the end of the employment relationship.
You might also be interested in these blog article on the topic of default wage claims: Divergence of LAG from BAG on compensation for default of acceptance following termination
Author of this article: Janina Aue, Lawyer & Mediator
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