[co-author: Niklas Thiel]

When an employee in Germany is unlawfully dismissed and successfully challenges the dismissal in court, the employee is generally entitled under Section 615 sentence 1 of the German Civil Code (BGB) to back pay for the period since the purported termination of the employment relationship. However, under Section 11 No. 2 of the Protection Against Unfair Dismissal Act (KSchG), the employee must have deducted from these back pay amounts any earnings they could have obtained during that period had they not maliciously refused to accept reasonable new employment.

Quick Hits

• The Regional Labor Court of Cologne ruled that employers can demand detailed information about the form and content of job applications if there are specific indications that the dismissed employee’s application efforts are insincere.
• The decision illustrates that even after winning a wrongful termination suit, individuals must make genuine efforts to find new employment or risk having to disclose their application materials in court when claiming back pay.
• The judgment shows that dismissed employees must undertake serious self-initiated job application efforts to avoid accusations of maliciously omitted earnings when claiming back pay.

For many years, German labor courts treated the defense of maliciously omitted earnings very restrictively, with the result that there was almost an automatic link between the finding of invalidity of a dismissal and the obligation to pay back...

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