Obligation to Pay Until the Expiration of the Notice Period

Facts of the Case

The plaintiff, a Senior Consultant, was terminated by his employer after four years of employment. During the three-month notice period, the employer irrevocably released the employee from duties while continuing to pay his salary. During this period, the employer sent the employee a total of 43 job offers from job portals. The employee applied to seven of these positions, but only towards the end of the notice period. The employer subsequently refused to pay the last monthly salary on the grounds that the employee had maliciously failed to seek new employment in a timely manner. According to Sec. 615 sentence 2 of the German Civil Code, an employee must account for any earnings that could have been obtained through alternative employment if such earnings were maliciously neglected.

Court Decision

The Federal Labor Court ruled that the employer was obliged to pay the employee’s last monthly salary. In its ruling, the court found that the employer was in default of acceptance due to the employee’s release during the notice period and was therefore obligated to pay the salary. Under Sec. 615 sentence 2 of the German Civil Code, employees must account for what they earn by performing their work elsewhere or what they maliciously fail to earn. However, the Federal Labor Court judges ruled that there was no alternative earnings that the employee maliciously failed to obtain in this case. An employee is not generally required to start a new job before the end of the notice period to financially relieve the employer. Sec. 615 sentence 2 of the German Civil Code contains an equity provision, meaning the employee’s obligations must be assessed in light of the employer’s duties. In this particular case, the employer failed to prove that it was unreasonable to continue the employee’s employment until the actual termination of the employment.

Practical Perspective

The Federal Labor Court’s decision confirms that, in principle, remuneration must continue to be paid until the end of the notice period and that an employee is not obliged to accept new employment until then. The legal situation after the end of the notice period is different. It is not enough to register as unemployed. Rather, the employee may be required not only to accept job offers from the employment agency, but also to make his own job application efforts. In this regard, we refer you to previous articles on our blog, such as: Employment Law: News on default of acceptance and Intentional Failure to Apply for Unemployment Benefits During Dismissal Protection Proceedings

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