No Right to Information on Applications for Job Offers

Federal Labor Court (Bundesarbeitsgericht), judgment of August 26, 2025 – 5 AZR 37/25 (so far available only as a press release)

Where an employee claims remuneration for default of acceptance (Annahmeverzugslohn), the employer is entitled to information about which job offers the employee has received from the Federal Employment Agency (Agentur für Arbeit) or the Jobcenter. However, the employer has no further – independently enforceable – right to information as to whether, how and with what result the employee applied for those positions. The Federal Labor Court (BAG) recently so held, thereby further refining its case law on claims for default of acceptance.

Facts

Following an invalid dismissal, the plaintiff employee claims remuneration for default of acceptance from the defendant employer. The employer argues, among other things, that the employee maliciously failed to earn other income within the meaning of Section 11 No. 2 of the German Unfair Dismissal Protection Act (KSchG). By way of a staged counterclaim (Stufenwiderklage), the employer therefore demanded comprehensive information about which job offers the public employment service had made to the employee, and to which of these proposals he had applied and with what result. In addition, he was to produce his application documents.

Furthermore, the employer demands information and documents regarding any efforts of the employee's own to find other employment. The Regional Labor Court (Landesarbeitsgericht) ruled on the defendant's requests for information by way of a partial judgment and granted them only to a limited extent.

Decision

On the defendant's appeal on points of law (Revision), the Fifth Senate of the BAG set aside the judgment of the Regional Labor Court on procedural grounds and remanded the case to the appellate court. The partial judgment should not have been issued, since the counterclaim was subject to an impermissible condition.

The BAG also gave the appellate court guidance to be observed in the continued appeal proceedings. Accordingly, an employer's right to information under Section 242 of the German Civil Code (BGB) (good faith) relating to the objection under Section 11 No. 2 KSchG extends only to disclosure of the circumstances the employer must plead in order to trigger the employee's secondary burden of presentation (sekundäre Darlegungslast) in proceedings for default of acceptance.

The burden of presentation for the objection of maliciously forgone interim earnings generally lies with the employer. To meet this burden, the employer must, as a first step, specifically state which suitable and reasonable employment opportunities would have been available to the employee during the period of default. If the employer wishes to rely on placement proposals from the public employment service, it knows neither whether such proposals were made nor what their content was. Therefore, according to the case law of the Fifth Senate, the employer has a right – enforceable independently, if necessary – against the employee under Section 242 BGB to information about any placement proposals made by the authorities and their content. There is no further right of the employer to information as to whether, how and with what result the employee applied for these proposals. The employee must state how he responded to the job offers made to him by the public employment service, and what application efforts he made in this respect and with what result, solely within the scope of his secondary burden of presentation. The employer does not need the requested information in order to raise its objection under Section 11 No. 2 KSchG. For this reason, there is also no right to information against an employee registered as unemployed regarding his own efforts to find other employment.

Assessment / Conclusion

Even after this BAG decision, employees must still actively look for new positions if they do not want to risk being left without claims for remuneration for default of acceptance after the conclusion of the unfair dismissal proceedings. It has now been clarified, however, that the employer does not have an unlimited right to information regarding the employee's application efforts. Rather, the BAG resolves the issue of maliciously failing to earn other income through the burden of presentation and proof. Initially, it suffices for the employee to disclose which job offers he has received. It is then for the employer to show that the position in question was suitable and one for which the employee should have applied.

Employers should nevertheless maintain the practice of sending suitable job offers to the employee during the unfair dismissal proceedings. The BAG's decision shows, however, that quality matters more than quantity here: the positions should actually be suitable. Only if the employer can plead this in the proceedings for remuneration for default of acceptance must the employee, within the scope of his secondary burden of proof, state whether and, if so, with what result he applied for them.