Employer's right to information after termination
By DR. RODOLFO DOLCE | 16.12.2020

In Italy, the right to be reinstated after an unfounded dismissal ("tutela reale" of the employment relationship) has been substantially abolished in recent years. In GermanEy, it is still applicable, whereby a dismissal without social justification does not terminate the employment relationship in the first place. The dismissed employee is not "reinstated" in the technical sense if he/she has won the lawsuit against the employer, possibly only after several years of litigation through several instances - he/she is treated as if he/she had never been dismissed. This leads to a considerable risk for the employer of having to make back payments of compensation claims for the entire duration of the lawsuit (= default of acceptance).

However, the employer is at least entitled to a credit for what the employee obtains during the duration of the process by using his labour in a reasonable manner or by maliciously refraining from doing so. For example, the employer may, under certain conditions, ask the employee to continue working for him as long as the trial has not been decided (so-called trial employment relationship). However, the employer also has a right against the employee to information about what work attempts he or she is making during this period.

As the BAG has now decided, thereby changing its previous case law, he also has a right to information about the placement proposals submitted by the Employment Agency, stating the activity, working time, place of work and remuneration (U.v. 27 May 2020, 5 AZR 387/19).

This decision is of high practical relevance, as the employer can reproach the employee who does not accept reasonable job offers from the Employment Agency with a malicious omission, which can exempt him or her from paying the subsequent gross salaries, at least proportionately. Employers will probably regularly be advised, in the case of payment claims by the employee for remuneration for the duration of the proceedings, to first assert the right to information before payment is made. 

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