Remuneration for default of acceptance
Remuneration for default of acceptance / Annahmeverzugslohn
September 01, 2023
Pursuant to section 615 sentence 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the employer must pay the employee even if he is in default of accepting performance. A delay in acceptance by the employer exists in application of the provisions in §§ 294 ff. BGB, if the employee has offered his performance in an employment relationship that can be fulfilled and the employer (regardless of fault) has not accepted the possible performance of the work.
The employment relationship can be fulfilled if the employee is effectively obliged to perform his work, i.e. the employment relationship was effectively established. Default of acceptance cannot occur during an effective release from the obligation to work, for example when leave is granted or in the case of an irrevocable release from work with crediting of the leave entitlement, since the employee is then not obliged to perform at all.
In principle, the employee must actually offer his or her work performance, i.e. at the agreed place of work and at the agreed working time. This is particularly necessary after an interruption due to illness or leave. If necessary, a literal offer may be sufficient if the employer has already declared that he is not prepared to accept further performance from the employee.
After an invalid notice of termination (regardless of whether extraordinary or ordinary) or in the case of a unilateral revocable release by the employer, the employee is in principle no longer required to make an offer, since according to the case law of the Federal Labour Court (Bundesarbeitsgericht, BAG) the employer is obliged to provide a functional workplace and to assign work, which he has already refused to do by the notice of termination. However, a literal offer is also implicit in the assertion of the invalidity of the termination - even if he falls ill after the expiry of the notice period, this offer is sufficient, an additional notification of the ability to work is not necessary.
After the employee has successfully asserted a claim for continued employment, it is usually reasonable for him to comply with the employer's demand for work, but he does not have to offer his work performance. A different rule applies to a settlement on the invalidity of the dismissal, according to which the employee must actually offer to perform his or her work without being requested to do so by the employer.
The performance of work must be possible at the time of the offer, i.e. the employee must be able and willing to perform. This is not the case, among other things, if the employee is ill or does not have the necessary authorisation for the work. In principle, an actual offer to perform work on site is an expression of the serious will to perform (willingness to perform). A lack of willingness to perform can lie in the consent to a termination agreement.
Finally, default of acceptance is established by the employer's failure to accept the offered work performance, whereby any express or implied conduct of the employer is sufficient to prevent performance, irrespective of fault or error on the part of the employer, e.g. about performance capacity. This is given in the case of the non-assignment of work in accordance with the contract or the non-establishment of a functional workplace, e.g. in the case of an invalid extraordinary dismissal, a plant closure or unlawful transfer of working hours.
The employer's default of acceptance ends through the employer's unconditional request of the employee to work, but not through a transfer of the business to another employer or through the employee's rejection of an employer's offer of a new, fixed-term employment contract/continuation of the previous employment relationship subject to a condition precedent during the proceedings for protection against dismissal. Default also ends through termination of the employment relationship or subsequent impossibility to perform work.
Continued payment of remuneration
During the period of default of acceptance, the employer is obliged to continue to pay the agreed gross remuneration, including special remuneration, allowances, commissions, etc. The employer's claim for payment is due when the employee is in default of acceptance. The employee's claim to payment is due in the same way as the normal claim to remuneration.
Setting off of other earnings
Pursuant to section 615, sentence 2, of the German Civil Code (BGB) and section 11, no. 2, of the Dismissal Protection Act (KschG), the employee must have credited against the existing claim for payment of remuneration what he earns or maliciously fails to earn through other work during the period of default of acceptance due to the non-performance of his work. Thus, if the employee works for another employer, is self-employed or receives social security benefits during this period, what he receives must be deducted from the remuneration claim. The same applies if the employee has omitted a reasonable and possible activity by remaining idle or by preventing the employee from taking up work.
The employee cannot be accused of such malicious omission if he is registered as unemployed and tries to find reasonable employment. However, the refusal to accept a notice of change of employment can constitute a malicious failure to earn money elsewhere, as can the refusal of an offer of interim employment by the previous employer during the proceedings for protection against dismissal, insofar as it concerns an ordinary dismissal for personal or operational reasons - however, such interim employment is unreasonable in the case of extraordinary dismissals or ordinary dismissals for reasons of conduct.
The employer bears the burden of proof for the acceptance of alternative work or the malicious omission; the employee must then truthfully state the amount of the alternative remuneration. In the case of a malicious omission, a hypothetical amount of remuneration is taken as a basis.
The employee may also be obliged to repay the salary for default of acceptance if the employer only learns later about an allowable remuneration from another source or omitted.