Back Pay for Default of Acceptance: Inactivity After Dismissal Costs the Employee the Back Pay (Higher Labour Court of Lower Saxony)

After an invalid summary dismissal, an employee is in principle entitled to so-called back pay for default of acceptance (Annahmeverzugslohn). However, this claim lapses under § 615 sentence 2 of the German Civil Code (BGB) if the employee wilfully fails to obtain reasonable interim earnings.

The Higher Labour Court (Landesarbeitsgericht, LAG) of Lower Saxony (judgment of 11 December 2025 – 5 SLa 465/25) has now applied this provision consistently to the detriment of an employee. The claimant lost his payment claim because he remained inactive for four weeks after receiving the dismissal. The court granted him merely a one-week grace period to process the dismissal psychologically. The requirement of "wilful failure" (böswilliges Unterlassen) was met, since the claimant, despite being objectively fit for work, made no efforts to apply for jobs. Adequate replacement employment was demonstrably available to him at short notice on the regional labour market. The court therefore imputed to him a fictitious income which he would have earned from the second week onwards had he applied for jobs as required. Since this fictitious income covered his previous wages, the actual payment claim against the former employer fell to zero.

The LAG thereby confirms the strict line of the Federal Labour Court (BAG) on employees' proactive duty to mitigate damages during ongoing unfair dismissal proceedings.

As an entrepreneur in unfair dismissal proceedings, always examine and object in detail to the dismissed employee's wilful inactivity under § 615 sentence 2 BGB. Use rights to information to demand proof of placement proposals from the Employment Agency and of the employee's own application activities. In this way you can effectively minimise or completely neutralise the economic risk of back pay for default of acceptance by imputing fictitious interim earnings.