Wages for delay in acceptance even if the employment in the process is refused after termination without notice

The Federal Labor Court examined the question of whether an employee who refuses to continue working for his employer after being dismissed without notice for conduct-related reasons is entitled to wages in lieu of acceptance.

The general rule is: If a dismissal is found to be invalid during the course of unfair dismissal proceedings, the employer is generally obligated to pay the employee's wages in lieu of acceptance despite the employee's lack of work (according to Section 615 of the German Civil Code). To minimize this risk, the employer can offer the employee so-called pending employment during the unfair dismissal proceedings, which allows them to resolve their default. However, if the employee does not accept this offer and refuses to work, they are generally not entitled to any remuneration for this period.

The legal situation is different in the case of termination without notice: Such a termination (according to Section 626 of the German Civil Code) is only effective if there is a serious reason that makes a continuation of the employment relationship until the regular termination date unreasonable. An employer's offer of procedural employment and simultaneous claims that the employment relationship cannot be continued are therefore contradictory (Federal Labor Court, judgment of March 29, 2023 - 5 AZR 255/22). This contradictory behavior leads to a "factual presumption" that the offer of procedural employment is not serious.

If an employee refuses to continue working for their employer during the unfair dismissal proceedings following termination without notice, this alone does not indicate that they do not intend to perform work within the meaning of Section 297 of the German Civil Code (BGB). In this case, the plaintiff was made unreasonable to remain with their employer during the proceedings due to the allegations made against them in the termination notice. Rejecting this offer does not result in the employee being credited with maliciously withheld earnings under Section 11 No. 2 of the German Dismissal Protection Act (KSchG).

The Federal Labor Court therefore ruled that the employer was in default of acceptance and had to pay the plaintiff his wages.