In the event of default of acceptance, employers* can only assert limited claims for information against their employees according to current case law of the Cologne Higher Labor Court. In particular, if employees may have maliciously ignored new employment opportunities during the delay in acceptance, the question arises for many employers as to whether they can demand information about the application efforts.
What is default of acceptance in employment law?
Default of acceptance occurs when an employer does not call for work from an employee due to an invalid termination, but must continue to pay wages. During this period, the employee is obliged to disclose any income from other sources in order to allow it to be offset against the default of acceptance wage. However, this obligation only covers limited information.
Scope of the employee’s duty to provide information
According to the judgment of the Regional Labor Court of Cologne (file no. 8 Sa 793/22), there is no general obligation on the part of the employee to provide comprehensive information about all application efforts made. A right to information about “all” applications that the employee has initiated during the delay in acceptance exceeds the permissible level and leads to an unreasonable burden. The employee only has to provide information on the placement offers proposed by the employment agency if requested by the employer.
The decision of the Regional Labor Court of Cologne is based in the grounds of the judgment on essential principles of labor law and in particular on the limits that the Federal Labor Court has set for claims for information. The decisive reasons include:
1. limitation by the principle of good faith
The right to information about application efforts is closely tied to the principle of good faith (Section 242 BGB). An employer may only demand information if it has justified and specific reasons in connection with the claims for default of acceptance. A blanket obligation on the employee to disclose every job application without a concrete suspicion that the employee has maliciously ignored other employment opportunities is contrary to good faith.
2. limitation to placement proposals from the employment agency
The court clarified that the employee’s duty to provide information only exists insofar as it is limited to the placement proposals of the employment agency or job center. If suitable job offers are submitted to the employee by the employment agency, the employee is obliged to seriously examine them and apply for them if they are reasonable. The employer can only subsequently request information about these applications. Applications made on the employee’s own initiative do not fall under this obligation, unless special circumstances make this necessary.
3. prohibition of overburdening the employee with comprehensive duties to provide information
Another important argument of the court relates to the protection of the employee from a disproportionate burden through far-reaching duties to provide information. Detailed information about every application made, every application process and its progress would mean an extensive documentation and reporting obligation for the employee. The court ruled that such extensive requirements are not proportionate and would unduly restrict the employee’s rights.
4. requirements for the right to information
The employer must not only prove an interest in information, but must also be able to demonstrate that specific placement opportunities existed which the employee may have maliciously failed to take. Only in these cases can a graduated right to information be considered. The mere possibility or assumption that the employee has applied for a job independently or may have failed to do so is not sufficient to justify a legally binding right to information.
In summary, the Cologne Higher Labor Court has made it clear with this ruling that the employee’s duty to provide information in the event of default of acceptance has limits and that the employer must observe these limits when making a corresponding request. Only if there are concrete indications of a potential breach of duty by the employee is there a right to specific information – and even then only within a precisely defined framework that enables a balanced presentation of evidence and protection of employee rights.
This protects employees from having to submit detailed reports on all application attempts and their results, unless there are special reasons. These principles emphasize the balance between the employer’s interest in information and the employee’s protection against excessive obligations.
Conclusion for employers: Limits of the duty to inform in the event of default of acceptance
Employers should note that there is only a right to information about employees’ application efforts if there is evidence of job placement proposals from the employment agency that could place the employee in a reasonable job. On the other hand, there is no comprehensive obligation to provide information in the case of the employee’s own initiatives without specific job offers. In practice, employers should therefore carefully consider which information is actually required and limit themselves to cases in which there is a legitimate interest in information.
Relevance for companies
This ruling provides employers with guidelines on how they should proceed in the event of default of acceptance in order to act in a legally secure and efficient manner. It is particularly important for companies that are confronted with claims for delayed acceptance of wages to be aware of the information limits in order to avoid unjustified claims without infringing the rights of employees.
* This refers to persons of all gender identities. Other spellings are only omitted for reasons of readability.
