New momentum for employers in dismissal protection proceedings

Labour courts do not have a reputation for being particularly employer-friendly. A decision of the Berlin-Brandenburg Regional Labour Court (judgement of 30 September 2022, file number 6 Sa 280/22) makes a welcome exception from the employer's point of view. This ruling improves the legal position of employers in long lasting dismissal protection proceedings by requiring employees to make considerable efforts to generate income by working for another employer.

What was it about?

An employee filed a dismissal protection claim in order to challenge the effectiveness of the termination of his employment relationship. During the dismissal protection proceedings, he was released from work obligations since from the employer's point of view there was no longer an open position. After the employee had won his dismissal protection claim after more than two years, he filed a claim for outstanding remuneration for the term of the court proceedings.

The employer was thus faced with the essential risk of long dismissal protection proceedings. In addition to the reinstatement of the dismissed employee on his former position, this mainly consists of remuneration payments for past periods in which the employee was released from work obligations and the employer was thus in default of acceptance of the employee’s services.

The employer successfully countered the employee's claim for retrospective payment of remuneration with the objection that the employee had maliciously failed to generate income by using his labour elsewhere.

Entitlement to information about job offers

Firstly, the decision of the Federal Labour Court from 27 May 2020 (file number 5 AZR 387/19) was helpful for the employer. According to this judgement, employers have a claim to information against the employee about job offers from the Employment Agency and the Job Centre. By way of a graduated burden of explanation and proof, the employee must also explain why he did not find another job.

High requirements for application efforts

Taking these principles into account, the Berlin-Brandenburg Regional Labour Court found that the employee had not made serious application efforts. The court applied a surprisingly strict standard. It found that 103 job applications by the employee, spread over a period of about 29 months, were not sufficient. The court's reasoning is particularly noteworthy: since the employee had a full time job and was not actively employed during the period in question, he should have made full time efforts in order to find a new job. In addition, the court criticised the poor quality of the written applications, which indicated a lack of seriousness.

New momentum for employers in dismissal protection proceedings

This decision strengthens the employers’ position in dismissal protection proceedings, as it significantly reduces the risk of retrospective remuneration payments for the term of court proceedings. Employees must make intensive application efforts during dismissal protection proceedings after the expiry of the notice period in order to keep their remuneration entitlements.

The question of how open employees are allowed to be about the ongoing dismissal protection proceedings is unresolved. In my opinion, being honest in an application process cannot be detrimental to employees. They can therefore drastically reduce their chances in application processes by truthfully stating that they filed a dismissal protection claim against their (old) employer and that they intend to continue the employment relationship with their old employer if their claim is successful.

The Berlin-Brandenburg Regional Labour Court did not allow an appeal to the Federal Labour Court because the decision concerned an individual case without fundamental importance. In view of the impact of the decision, this is clearly an understatement.