During unfair dismissal proceedings, an employer can offer the dismissed employee continued employment while the case is pending. Doing so can save the employer substantial back pay for default of acceptance. In its judgment of 6 August 2026 (18 SLa 24/26), the Regional Labour Court of Hamm set out clear requirements for such an offer.
Facts
The claimant worked for the defendant as an order picker in warehouse logistics. After an argument, he threw a plastic mallet towards a colleague, and it struck the roller door next to him. The defendant then gave the claimant ordinary notice of dismissal with effect from 31 August 2023. The claimant brought an unfair dismissal claim. The Labour Court of Detmold initially dismissed it, but the LAG Hamm later held that the dismissal was invalid. Straight after the claimant lost at first instance, the defendant's lawyers wrote to him on 1 September 2023. The letter offered him employment for the duration of the proceedings "in the area in which he was last deployed". It added that a fixed-term employment contract would be sent to him if he accepted. The claimant did not reply. He later brought a payment claim for back pay for default of acceptance covering 1 September 2023 to 27 June 2024. The Labour Court of Detmold dismissed the claim, and the LAG Hamm dismissed his appeal.
Decision
The LAG Hamm held that, by refusing the offer, the claimant had in bad faith failed to take up available work within the meaning of section 11 no. 2 of the Protection against Unfair Dismissal Act This meant that no claim to back pay for default of acceptance arose at all.
On what counts as a reasonable job offer, the court held that it need not be an offer capable of acceptance within the meaning of section 145 of the German Civil Code, BGB). It is enough if the offer lets the employee assess whether the work is suitable and reasonable for them. An offer of employment during litigation must therefore meet the same requirements as job advertisements from other employers. Employers send such advertisements to employees to increase the employee's secondary burden of presenting facts in the proceedings.
In this case, referring to the claimant's previous work was enough. The type of work, its content and its location were clear. As nothing was said to the contrary, the claimant had to assume that he would receive his previous pay, or at least the pay that was usual in the business.
The court added that the letter of 1 September 2023 would have been sufficient even if it had to meet the requirements for an offer capable of acceptance under section 145 BGB, because it contained all the essential terms of the contract. If anything had been unclear to the claimant, his (post-)contractual duty of consideration would have required him to ask. His silence could not be held against the employer. The court also took into account that the defendant had said it would prepare a full written contract setting out the working conditions in more detail.
The court found that employment during the litigation was reasonable even though the dismissal was for misconduct. The facts behind the dismissal were not in dispute. Only their legal assessment was still at issue, and in principle they were capable of justifying a dismissal for misconduct. Where an employee's own undisputed conduct has caused the dismissal dispute, the employee must accept that the dispute continues while they are working. If the only remaining issue is the legal assessment of undisputed facts that are in principle capable of justifying dismissal, the strain on the employment relationship is much lower. In that situation, the element that usually makes a dismissal for misconduct so damaging is missing, namely an accusation based on untrue facts.
The claimant also alleged that the defendant's sub-agent counsel had said at the conciliation hearing, in substance, that the claimant's conduct amounted to attempted murder. The court held that this did not make the offer unreasonable either. At the chamber hearing on 30 August 2023, two days before the offer was made, the defendant had distanced itself from the remark. In addition, the remark was only the sub-agent's own view of the undisputed events under criminal law. Such a view cannot carry as much weight as an untrue statement of fact.
Practical note
The decision shows employers how useful an offer of employment during litigation can be. It can cancel out the financial risk of back pay for default of acceptance during lengthy dismissal proceedings. Whether such an offer is advisable will always depend on the circumstances of the case.
Employers should always pay careful attention to how the offer is worded, so that an employee who rejects it can be found to have failed to take up work in bad faith. The offer must be sufficiently specific as to the work, working hours, place of work and pay. As in this case, an offer that expressly refers to the previous terms of employment meets these requirements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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