A lawsuit by an employee against the employer to protect against dismissal is always accompanied by a high cost risk for the employer.
If it turns out at the end of the often lengthy proceedings that the termination was invalid, the employment relationship is not terminated. But what is much more serious is that the employer must pay the contractually owed remuneration, the so-called delayed acceptance wage, for the entire period since the alleged end.
But what is the situation if the employee has received a job offer during the lawsuit?
Does the employee have a duty to disclose what job offers he or she had during the process?
In the underlying case of the Federal Labor Court/ Bundesarbeitsgericht (BAG), the employee had won the proceedings for protection against dismissal and now sued for payment of the remuneration, taking into account unemployment benefits received.
The defendant employer raised the objection that the employee had maliciously failed to earn money elsewhere and requested that the plaintiff provide written information on which job offers had been made to him by the Federal Employment Agency and the Job Center.
The employer’s objective was that these (rejected) job offers be credited against the remuneration and thus reduce its obligation to pay the remuneration.
The BAG granted this request and ordered the employee to provide information about the placement proposals of the Employment Agency and the Job Center, stating the activity, working hours, place of work and remuneration. This duty to provide information arises as a secondary obligation from the employment relationship pursuant to Section 242 of the German Civil Code.
This judgment represents a clear strengthening of the employer’s position in proceedings for protection against dismissal. In light of this ruling, an employee will be more inclined to reach a settlement or accept a reasonable job offer from the employment agency.
In both cases, this reduces the employer’s cost risk.
My recommendation on the subject of dismissal proceedings?
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Questions about the dismissal protection process?
Rechtsanwalt, Fachanwalt für Arbeitsrecht
Prokurist der Acconsis GmbH Rechtsanwaltsgesellschaft
+ 49 89 547143
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