Employment law · October 2026

Default of acceptance: what the employer may learn about the job search

Anyone claiming back pay after an invalid dismissal must accept a deduction for what they maliciously fail to earn. The Federal Labour Court has clarified how far the employer can demand information on this.

Background

If a dismissal is invalid, the employer owes the salary for the period of the dispute (default of acceptance pay). A deduction is made for what the employee could have earned had they not maliciously turned down reasonable work (§ 11 no. 2 KSchG). For employers, this is often the decisive lever for limiting the financial risk of proceedings.

The decision

The Federal Labour Court has ruled (judgment of 26 August 2026 – 5 AZR 37/25): the employer may demand information on which job offers the employment agency or job centre has made to the employee. However, there is no further, independently enforceable claim to information on whether and with what result the employee applied for jobs.

The employee only has to explain their application behaviour in the proceedings if the employer raises the objection of maliciously foregone earnings (secondary burden of presentation).

What this means in practice

  • For employers: Information on job placement offers is an important tool and should be requested early. It strengthens the position in settlement negotiations.
  • For employees: Register as a job seeker, consider placement offers seriously and document your efforts. Anyone who turns down reasonable offers risks losing their claim to back pay.
  • For severance: The more realistic follow-on employment is, the lower the employer's default of acceptance risk – and the lower its incentive to pay a high severance.

This article provides a general overview and is no substitute for advice in individual cases. As of: October 2026.

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