Germany: Obligations of employee to look for new job after termination

If the employee owes services to the employer who does not accept these in default, e.g. after an invalid dismissal, the employee might still be entitled to the agreed remuneration, in particular in the form of backpay between the termination date and the judgment. However, what the employee saves as a result of not performing the services or acquires or willfully fails to acquire through use of his labour elsewhere gets credited against such entitlement.

Regarding the case of failing to acquire remuneration through use of his labour elsewhere, the courts specified the level of effort an employee needs to make. First of all they need to give notice to the employment agency that they are looking for a job. In 2020 the Federal Labour Court added the requirement of reasonable efforts the employee must make to find themself a new job and seriously use and apply to every opportunity given to them by the employment agency.

In the first case, the new requirement was put to the test. After winning a lawsuit against an unfair and therefore invalid dismissal, an employee sought backpay for the corresponding period of default in acceptance.

He applied to 103 jobs during a 29 month period (1) only considering a few of the job propositions made by the employment agency (2) not individualizing his applications which also contained grammatical mistakes (3) in two cases not reacting to queries of potential employers and if he did not receive an answer to the application doing nothing at all. The Regional Labour Court Berlin-Brandenburg found that he willfully failed to acquire remuneration through use of his employment elsewhere.

Objectively there needs to be an impression of seriousness regarding the effort. In this case the employee should have individualized the applications, cleaned up mistakes, answered queries and inquired after not receiving an answer. Also, the court found that he could have issued more applications, timewise efforts corresponding to a full-time position would have been appropriate. As a result there was no entitlement at all as the court was convinced that he would have found a job with the same remuneration if he would have applied appropriately.

The same was found in the case of an employer that was going through a restructuring, invalidly dismissing employees while offering them work in an outsourced service GmbH on the same terms as the old employment. The Regional Labour Court of Niedersachsen argued that by not accepting the offer, which would have earned the employee the same remuneration, there was no entitlement to backpay because of default in acceptance.

“Practical Point”

• These decisions confirm that the risk of default in acceptance has meanwhile shifted towards the employee side.
• PWWL offers a Legal Tech tool that makes use of the more recent case law on this topic. The tool will crawl the web for suitable roles for the employee which will then be sent to the employee so that they have to show their efforts in applying for these roles. The tool can put significant pressure on the employee, reduces the risk of having to pay backpay following an invalid dismissal and increases the chances of a reasonable settlement.