Quick Hits
- An employer may request that the employee disclose which job offers the employee received from Germany’s Federal Employment Agency (Bundesagentur für Arbeit) or Jobcenter.
- The employer does not have an independently enforceable right to information about applications and their outcomes.
- The right to information under Section 242 of the German Civil Code (Bürgerliches Gesetzbuch (BGB)) extends only as far as the employer needs information to trigger the employee’s secondary burden of producing evidence (sekundäre Darlegungslast) in default-of-acceptance remuneration litigation.
The Case—Dispute Over Default-of-Acceptance Remuneration After a Termination
The employee was discharged. The employment termination proved to be invalid. The employee then claimed default-of-acceptance remuneration from the employer for the period of nonemployment. The employer refused payment and argued under Section 11 no. 2 of the German Protection Against Dismissal Act (Kündigungsschutzgesetz (KSchG)) that the employee had maliciously failed to obtain alternative earnings in the meantime.
Because employers have the primary burden of producing evidence and the burden of proof (Darlegungs- und Beweislast), the employer brought a conditional staged counterclaim (bedingte Stufenwiderklage). The employer requested extensive information. The employee was to state which job offers the employee had received from the Federal Employment Agency or Jobcenter, including the activity, working hours, location, and remuneration. The employee was also to disclose whether the employee had applied for those offers, the outcome of those applications, and what application efforts the employee had undertaken. In addition, the employer requested the production of all application materials.
In its decision of September 25, 2024 (Ref. No. 18 SLa 467/24), the Hessian Regional Labor Court (Landesarbeitsgericht (LAG) Hessen) granted these requests only to a limited extent. The employer appealed to the BAG.
The Decision—Information About Job Placement Proposals, but Not Application Details
The Fifth Senate of the BAG vacated the partial judgment for procedural reasons and remanded the case to the appellate court. The partial judgment should not have been issued because the counterclaim was subject to an inadmissible condition. On the merits, however, the BAG provided the Hessian LAG with clear guidance for the further proceedings.
Accordingly, the employer’s right to information based on Section 242 BGB extends only to the information the employer needs in order to trigger the employee’s secondary burden of producing evidence. The employer generally bears the burden of pleading and proof for the defense of maliciously failing to earn interim income. If the employer seeks to rely on job placement proposals from the state employment placement service, the employer generally does not know whether such proposals were made at all or what they contained. The employer therefore has a right to information from the employee regarding any job placement proposals and their content, which may be enforceable as an independent claim.
By contrast, there is no further right to information as to whether, how, and with what result the employee applied for those proposals. The employee must address these points only as part of the employee’s secondary burden of producing evidence. Likewise, an employee registered as unemployed does not owe information about the employee’s own efforts to find other employment.
The employer does not need this information in order to raise the defense under Section 11 no. 2 KSchG.
Key Takeaways—Limits on Information Requests in Default-of-Acceptance Cases
So far, only the press release on the judgment is available. Further details will therefore have to await publication of the full judgment.
It is already clear, however, that the BAG is confirming its existing line of case law. The decision is therefore likely to have particular relevance for litigation involving default-of-acceptance pay and malicious failure to obtain alternative earnings under Section 11 no. 2 KSchG.
For employers seeking to rely on this defense, the decision points to the following practical consequences.
- Information requests are to be limited to the essentials. This may include, for example, disclosure of all job placement proposals, including information on the activity, working hours, location, and remuneration. Requests relating to the outcomes of application efforts, or even to application materials, will be rejected by the labor courts.
- Because employers have the primary burden of producing evidence and the burden of proof they may want to conduct their own job search in parallel with the information request and document specific job offers. These job offers may also be sent to the employee in a verifiable manner.
- Only once specific employment opportunities have been identified must the employee address circumstances within the employee’s own sphere as part of the secondary burden of producing evidence. This includes, in particular, an explanation of how the employee responded to specific job placement proposals or other identified employment opportunities.
Dr. Merle Steinhuber is an associate in Ogletree Deakins’ Berlin office.
Maximilian Gössling, a trainee lawyer in Ogletree Deakins’ Berlin office, contributed to this article.
Ogletree Deakins’ Berlin office will continue to monitor developments and will post updates on the Cross-Border and Germany blogs as additional information becomes available.
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