In this legal tip, lawyer Marius Saager, specialist in labor law at caspers mock, explains the legal basis and practical significance of what is known as "acceptance delay wages." The article is aimed at employers and employees alike and highlights the conditions under which a claim for remuneration may exist despite a lack of work performance.
The starting point is the labor law principle of "no work, no pay." However, there are several legal exceptions to this, such as illness or vacation. Another exception that is particularly relevant in practice is wages for default of acceptance pursuant to Section 615 of the German Civil Code (BGB). This applies if the employer does not accept the work offered or shows no interest in it.
Remuneration for default of acceptance means that the employee retains their entitlement to remuneration even though they are not actually working. The prerequisite is that the employer is in default of acceptance, i.e., they could have legally and actually accepted the work performance but failed to do so. In such cases, the employer bears the so-called operational risk.
Default of acceptance is particularly relevant in connection with terminations. If, in the context of an unfair dismissal lawsuit, it turns out that a dismissal is invalid, the employer owes wages for default of acceptance from the end of the notice period or from the date of receipt of a dismissal without notice. The longer the legal proceedings drag on, the longer the period for which remuneration must be paid retroactively.
However, the employee's claim is not unlimited. They must allow both actual earnings from other sources and earnings that they maliciously failed to earn to be taken into account. This is to prevent the employee from remaining inactive during the proceedings even though reasonable employment opportunities exist.
This is precisely why default of acceptance has considerable strategic significance in dismissal protection proceedings. High potential back pay amounts can increase the economic pressure on the employer and often play a role in settlement negotiations regarding severance payments.
The speaker will highlight the measures employers can take to limit the risk of default of acceptance wages. A key role is played by a right to information, which can be used to check whether and to what extent the employee must allow other earnings to be taken into account. This right generally refers to job offers from the Federal Employment Agency, but not automatically to the employee's own job search efforts.
In order to create a better starting position here, it is advisable for employers to take action themselves and send the dismissed employee specific job offers after the notice period has expired. These offers must be reasonable, particularly with regard to qualifications, remuneration, and regional accessibility. If the employee does not apply or does not apply seriously, this may become relevant in the proceedings.
Finally, it should be emphasized that employers should not wait after giving notice of termination. Timely and active measures can significantly reduce financial risks in connection with claims for wages due to default of acceptance and strengthen the employer's position in dismissal protection proceedings.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.