Update Employment Law September 2020

Employer's right to information in the context of default of acceptance in case of other acquisition

BAG dated May 27, 2020 - 5 AZR 387/19

The assessment of the risk of whether and to what extent the employer owes the remuneration for the entire period after the employee has been released from work or after the notice period has expired has an enormous impact how to advise legally. In particular, it is the decisive factor in determining whether and under which economic conditions an amicable settlement with the employee is reasonable.

This follows from the legal situation that the employee's claim to default of acceptance wage is not unlimited in case of a legally ineffective termination: If in the meantime the employee earns other income with another employer or due to self-employment, this will be credited to his claim for remuneration in order to reduce the claim. The same applies if the employee, as far as he can see, fails to pursue a reasonable earning opportunity (so-called malicious omission of interim earnings).

In practice, however, it is not possible for employers to assess whether and, if so, to what extent the employee has earned other income in the meantime. It is almost impossible for the employee to determine whether he or she has maliciously refrained from earning any other interim income.

In its decision of May 27, 2020, the Federal Labor Court (BAG) now deals with the extremely important question of whether the employer can counter the employee's claim to default of acceptance wage with (at least) a claim for information about the sent job offers made by the Employment Agency and the Job Center. This is not provided by written law - 


The decision is based on the following initial situation: 

The defendant employer had given the plaintiff, who had been employed as a construction craftsman since 1996, several notices of termination since 2011. Among other things, it had terminated the employment relationship with extraordinary notice and, alternatively, with due notice in writing on January 30, 2013. The employer has not been paying any compensation since February 2013.

The plaintiff employee was successful with all of the dismissal protection suits. The employment relationship therefore continues. He subsequently filed a claim to default of acceptance wage for the period from February 2013 onwards. The defendant countered this by stating that the plaintiff had maliciously failed to earn money elsewhere. It demands from the plaintiff counterclaiming in writing information about job offers from third parties submitted to the plaintiff by the Employment Agency and the Job Center. This in each case under designation of the activity, the work time and the place of work as well as the advertised remuneration in euro. 

Proceedings & Decision

The Erfurt Labor Court upheld the counterclaim for information in the first instance by partial judgment. The Thuringian Regional Labor Court dismissed the appeal filed by the plaintiff. It justified this with the fact that it was difficult to understand that the plaintiff had not been able to find a job in the entire time. Furthermore the proof situation for an employer is still more difficult with rejected job offers than with actually obtained intermediate acquisition of the employee. 

The BAG has rejected the plaintiff's appeal. Just like the previous instances it awarded the defendant the validly asserted claim for information against the plaintiff by partial judgement. It is a secondary obligation arising from the employment relationship. The code of civil procedure generally does not know any obligations to give information. However, such an obligation can exist in good faith if the legal relations entail that the entitled party is in a position to be excusably uncertain about the existing scope of its right and the obligated party can easily provide the information required to eliminate the uncertainty without impermissibly changing the situation of presentation and evidence in the lawsuit. According to these requirements, the defendant is entitled to the asserted claim for information. The defendant's contractual rights are affected by the plaintiff's action for payment. Because otherwise obtained earnings or maliciously omitted intermediate earnings of the employee prevent to that extent the emergence of a remuneration requirement from default of acceptance. However, the employer needs appropriate information in order to be able to introduce the objection of malicious omission of other reasonable work into the lawsuit and thus defend the claim for payment of the plaintiff employee.

The BAG then states that the employer cannot regularly present and prove whether and, if so, to what extent the employee has earned other earnings. In particular, the use of a detective "into the blue" is inadmissible under data protection law. With regard to a possible malicious omission of other reasonable work, the employer could not provide any information with regard to job offers due to social secrecy. Even accidental knowledge is virtually impossible. Therefore, the legally provided crediting possibility with regard to otherwise achieved earnings and crediting possibilities with third parties without the right to information would be virtually empty. On the other hand, the employee is aware of the job offers submitted and could easily provide the information. Protective interests in the secrecy of the submitted job vacancies would not prevent the provision of information. After all, the crediting of maliciously omitted other earnings is expressly provided by law. This does not inadmissibly change the situation of presentation and evidence. 

Practical advice

The decision is a clear legal statement and will have a lasting positive impact on the negotiating position of employers in dismissal protection litigation. This is particularly true because the case law of the courts of instance (most recently the Hessen State Labor Court, 11.05.2018 - 10 Sa 1628/17) has denied such a claim for information. 

However, the BAG quite rightly points out that the legal concept expressly provides that the employee must actually have achieved interim earnings credited against his claim to compensation for default of acceptance in the same way as he has not achieved such earnings maliciously. This follows not only from the legal nature of the employment relationship as a service relationship, but also from the idea that in the context of each contractual obligation the respective party must take into account the rights and legal interests of the other. In practice, however, the effective enforcement of these crediting possibilities has usually failed so far due to the lack of the employer's ability to find out about the necessary circumstances. In addition, case law has traditionally set very high obstacles for the affirmative action of malicious omission of interim acquisition. Thus, with regard to malicious failure to make an interim acquisition, the employer is not only required to demonstrate that the employee has "maliciously" declined reasonable earning opportunities. Rather, it must also demonstrate and prove that if the employee had hypothetically applied, he would have actually been hired and would have earned interim income accordingly. However, such a hypothetical causal course can practically never be established. 

In addition it should be noted that the BAG, in an earlier decision, which was issued however before the Hartz 4 reform came into force, still stated that a charge because of malicious omission of intermediate acquisition does not even follow from the fact that the employee does not register as a jobseeker at the Employment Agency. The BAG does not seem to adhere to this in the future either. 

The result of the decision does not change the fact that the burden of proof and demonstration for the requirements for recognition remains with the employer. However, in contrast to the previous situation, employees will have to state which job vacancies have been submitted to them and whether they have applied for them in the future. This is also positive and certainly does not constitute an inappropriate demand in view of the obligations to cooperate under social security law.

Download as PDF
Download as PDF

You are currently using an outdated and no longer supported browser (Internet Explorer). To ensure the best user experience and save you from possible problems, we recommend that you use a more modern browser.