Positive development for employers and at the same time a "trap" for employees?
According to the latest figures from the Federal Statistical Office, which refer to the year 2020, around two thirds of labor court disputes end in a settlement. There are usually good reasons for this: Many employees defend themselves against dismissal by filing a lawsuit for protection against unfair dismissal. The procedure can take a long time, resulting in higher costs, the pending procedure impairs the planning security of the parties and the relationship of trust is often very tense. A stressful situation for both parties.
Default of acceptance – risk for the employer
But for the employer in particular, the lawsuit for protection against unfair dismissal entails financial risks. On the one hand, there is protection against dismissal for employees, which takes into account employees' need for social protection and sets high requirements for the effectiveness of a dismissal. On the other hand, there is the threat of “default acceptance wages”: By giving notice, the employer expresses that it will no longer accept the employee’s work after the notice period has expired. If the labor court determines that the termination was ineffective, the employment relationship continues and the employee can assert a claim for additional payment of remuneration for the period after the termination period has expired until the court has made a decision, even though he has not worked. Depending on the length of the procedure, this can extend to several monthly or even annual salaries. But is the salary entitlement always and in full?
employee's obligation to account
No! The threat of delayed acceptance of wages amounting to several months' salary, the avoidance of which motivates many employers to be willing to make comparisons, including high severance payments, has its limits. The employee must be credited for what he has earned through other work or could have earned through other work. Social benefits are also taken into account. But how does the employer find out whether anything is to be credited at all?
Employer's right to information
The Federal Labor Court (BAG) already strengthened the rights of employers in its decision of May 27, 2020 (Az.: 5 AZR 387/19). Here the employee was obliged to inform the employer about the job offers of the employment agency and about his efforts to find a new job. The employer has no other way of legally obtaining information about the employee's obligation to offset and the amount to be offset. That is why the right to information is justified, according to the BAG.
Applications as a "full-time job"
A recent and remarkable decision by the Berlin-Brandenburg State Labor Court (LAG) of September 30, 2022 (Az.: 20 Ca 3918/20) goes even further. Here, too, the employer was able to assert its right to information and found that the employee had received numerous reasonable placement offers from the employment agency, but had not applied or had only insufficiently applied.
The LAG determined that the employee was unemployed during the dismissal protection process and was therefore obliged to make an effort to apply that “corresponds to the time required for a full-time position”. He even has to follow up with potential employers if he has not received an answer to his application. The court dealt extensively with the quality and seriousness of the employee's applications, which it also assessed as insufficient. For these reasons, the court denied the employee any default wages.
It is an open question whether employees who have been dismissed – to put it bluntly – have to spend 40 hours a week trying to apply for a job. Many employees hope for a successful dismissal protection process and have by no means finished with their old job. The opinion of the LAG Berlin-Brandenburg goes very far and it remains to be seen whether the principles set out to the detriment of the employees will be shared by other courts. Nevertheless, in the future employees cannot rely on receiving the full amount of default wages after a successful dismissal protection process, but should carefully examine their other career prospects and consider taking up a reasonable job. The recent development of case law is undoubtedly welcomed from an employers' point of view. The decisions of the BAG and the LAG Berlin-Brandenburg must always be taken into account when deciding how to proceed within the framework of a dismissal protection procedure. This applies equally to employers and employees.