Update Employment Law January 2023

LAG Berlin-Brandenburg: News on the risk of default of acceptance after notice of termination by the employer has been given

LAG Berlin-Brandenburg dated September 30, 2022 - 6 Sa 280

The risk assessment of the extent to which the employer owes remuneration for the entire period after the employee's release from work or after the expiry of the notice period following the issuance of a (possibly legally invalid) notice of termination is a decisive factor in determining whether and under what economic conditions an amicable agreement between the parties to the employment contract can be reached. This is based on the legal situation that the employee's entitlement to compensation for default of acceptance is not unlimited: If the employee earns other income in the meantime with another employer or on the basis of self-employment, this is deducted from the employee's claim to compensation. The same applies if the employee fails to pursue a reasonable possibility of gainful employment (so-called malicious omission of interim earnings).

However, during the dismissal protection proceedings - which can sometimes last several years - the employer is often faced with the challenge of not being able to reliably assess whether the statutory offsetting criteria can be asserted in his favor. Thus, the employer cannot initially request information as to whether the employee has earned other income in the meantime. It is almost impossible for him to assess whether the employee may have maliciously failed to acquire other interim earnings. This applies all the more to the corresponding presentation in the subsequent compensation dispute. Nevertheless, the employer bears the burden of proof in both cases. With regard to a malicious omission of interim earnings, the employer must therefore demonstrate and prove in the legal dispute that an opportunity to earn actually existed. According to older labor court case law, this also includes the presentation and proof that the employee would actually have been hired in the event of a (hypothetical) job application and would therefore also have achieved interim earnings. Since this is regularly not possible, the statutory possibility of offsetting in the case of malicious omission of interim earnings often comes to nothing.

This situation leads to a situation in which the risk of default of acceptance wages in the dismissal protection process and thus the pressure on the employer increases with the passage of time. Employees sometimes use this as a deliberate tactic in the proceedings to enforce excessive severance pay claims against the employer.

In its more recent case law, the Federal Labor Court has made an initial corrective by recognizing an employer's right to information - not expressly provided for by law - regarding the placement proposals submitted to the employee by the job center and the employment agency. The present decision of the LAG Berlin-Brandenburg goes one step further.


In the case to be decided, the plaintiff had been dismissed first in 2017, then in 2019 - ultimately with no legal effect. The Federal Employment Agency and the Job Center made various placement proposals to the plaintiff during the termination disputes. They did not impose sanctions on the plaintiff. For almost four years, the plaintiff did not earn any interim income. This was despite the fact that he claimed to have sent a total of 104 job applications by e-mail.


After the plaintiff had already been unsuccessful before the Berlin Labor Court with his claim for payment for default of acceptance for the months of May 2017 to April 2021, the Berlin-Brandenburg Regional Labor Court dismissed the appeal. In this case, it ruled that the amount of the payment claim for malicious failure to accept reasonable work was zero. This is because, according to the statutory provisions, the employee may not remain inactive if a realistic work opportunity is offered to him. The employer had satisfied its burden of proof and provided sufficient indications from which the reasonableness of the work and a possible maliciousness of the omission of other acquisition resulted.

In summary, these were the following:

  • Incomplete application of the plaintiff to the placement proposals submitted by the employment agency or the job center,
  • No proven application efforts by the plaintiff prior to October 25, 2018,
  • No submission by the claimant as to why he did not react to reply emails from job applications,
  • No submission by the plaintiff as to why he did not follow up at least once on the total of 29 occasions when he did not receive a rejection letter in response to his application;
  • Only 103 applications during a period of 29 months; thus on average less than one application per week;
  • Insufficient quality of the written applications (relatively short and in each case not individualized cover letter with spelling mistakes).

The plaintiff had not substantiatedly countered the above indications.

The court did not allow the appeal on points of law. It is not known whether a complaint of non-admission has been filed.

Practical advice

From the employer's point of view, the decision is both welcome and instructive. After the Federal Labor Court - contrary to its earlier line of case law - already granted employers a right to information on job placement proposals in the case of default of acceptance in 2020, stating the activity, working hours, work regulations and remuneration, it now points to indications that may speak against serious job application efforts on the part of the employee. This shifts the risk of default of acceptance, which in fact is often to the detriment of the employer, to the sphere of the employee. This is also appropriate because the legal validity of a termination cannot be predicted with legal certainty for various reasons. In view of the current situation on the labor market and the shortage of skilled workers across all sectors, it is not clear why employees who - as in the present case - do not make any serious efforts to apply for a job for years during the ongoing proceedings for protection against dismissal should have an unreduced claim to default of acceptance pay. In this respect, the present decision also sends out a positive signal in terms of labor market policy, because employees are required to make greater efforts to apply for employment than was the practice in the past according to case law. Whether the risk of default of acceptance can also be reduced by the employer requesting the employee to apply for specific job advertisements researched by the employer during the ongoing proceedings for protection against dismissal has still not been clarified by the supreme court. From the employer's point of view, the resulting legal uncertainty should therefore definitely (continue to) be used tactically.


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