• Mehr als 3 Millionen Wörter Inhalt
  • |
  • info@itmedialaw.com
  • |
  • Tel: 03322 5078053
Rechtsanwalt Marian Härtel - ITMediaLaw

No products in the cart.

  • en English
  • de Deutsch
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Kurzberatung
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Rechtsanwalt Marian Härtel - ITMediaLaw

Federal Labor Court on termination without notice and default of acceptance

5. April 2023
in Labour law
Reading Time: 4 mins read
0 0
A A
0
arbeitsrecht
Key Facts
  • Terminations without notice by the employer can have a contradictory effect if continued employment is offered under unchanged conditions.
  • There is an actual presumption that the employment offer is not meant seriously.
  • The plaintiff had been working as a technical manager since August 2018 and earned EUR 5,250 gross per month.
  • The defendant gave notice of termination without notice and offered the plaintiff a new contract with lower remuneration.
  • The Labor Court and the Regional Labor Court dismissed the plaintiff's claim for compensation due to default of acceptance.
  • The appeal to the Federal Labor Court was successful, as the defendant was in default of acceptance.
  • The plaintiff did not have to present any inconsistencies with regard to his application for provisional continued employment, as the dismissals were invalid.

If the employer terminates the employment relationship without notice because it believes that it cannot reasonably be expected to continue the employment relationship, but at the same time offers the employee continued employment under unchanged conditions during the proceedings for protection against unfair dismissal “in order to avoid default of acceptance”, it is behaving inconsistently. In such a case, there is a factual presumption that the offer of employment is not serious. This presumption can be invalidated by the reasons for the termination to the certainty or by corresponding explanations of the employer.

The plaintiff was employed by the defendant as a technical manager since August 16, 2018 and earned 5,250.00 euros gross per month. In a letter dated December 2, 2019, the defendant issued a notice of termination without notice, offering the plaintiff a new employment contract as a software developer in return for a reduction in gross monthly compensation to EUR 3,750.00. Further, the termination letter states, “in the event that you reject the extraordinary termination (i.e. in the event that you assume an undissolved employment relationship) or in the event that we accept the following offer, we expect you to start work on 05.12.2019 no later than 12:00 CET”. The plaintiff rejected the offer of change and also did not show up for work. Thereupon, the defendant terminated the employment relationship again in a letter dated December 14, 2019, namely “extraordinarily as of December 17, 2019, at 12:00 a.m. CET.” It also pointed out that “in the event of rejection of this extraordinary termination” it expected the plaintiff “to start work on 17.12.2019 at 12:00 CET at the latest”. The plaintiff did not comply. In the proceedings for protection against dismissal brought by him, it was legally established that both notices of termination did not terminate the employment relationship of the parties.

After the defendant only paid remuneration of EUR 765.14 gross for the month of December 2019 and the plaintiff was not able to establish a new employment relationship until April 1, 2020, he brought an action for compensation for default in acceptance, demanding payment of the salary agreed in the employment contract less the unemployment benefit received until he started the new employment. He believed that the defendant had been in default of acceptance during the period in dispute due to its invalid notices of termination. He could not be expected to continue working for the defendant under changed or even the original working conditions, if the defendant had seriously offered this at all. The defendant had unjustifiably accused him of multiple misconduct and disparaged his person in extensive explanations in order to justify its termination without notice. For its part, it had claimed that it could not reasonably be expected to continue employing the plaintiff. In contrast, the defendant argued that it was not in default of acceptance because the plaintiff had not continued to work for it during the proceedings to protect against dismissal. The plaintiff himself had assumed that continued employment was reasonable because he had filed an application for provisional continued employment in the proceedings for protection against dismissal.

The labor court dismissed the action. The Land Labour Court rejected the applicant’s appeal. It assumed that the plaintiff was not entitled to compensation for default of acceptance despite the defendant’s invalid notices of termination because he had not accepted the defendant’s offer to continue working for it during the proceedings for protection against unfair dismissal. The plaintiff is therefore not willing to perform within the meaning of the law. § 297 of the German Civil Code (BGB).

The plaintiff’s appeal, which was subsequently allowed by the Fifth Senate of the Federal Labor Court, was successful. The defendant was in default of acceptance due to its invalid notices of termination without notice, without the need for an offer of employment by the plaintiff. Because the defendant itself assumed that it could not be expected to continue employing the plaintiff, its contradictory conduct gives rise to a factual presumption that it did not make the plaintiff a serious offer of employment in the proceedings. The deviating assessment by the Regional Labor Court is based on only selective consideration of the parties’ submissions and is therefore not justifiable. Furthermore, the rejection of such an “offer” does not indicate a lack of will to perform on the part of the plaintiff within the meaning of the German Civil Code. § 297 of the German Civil Code (BGB). The only possibility would be that he would have to accept credit for maliciously omitted earnings in accordance with § 11 No. 2 KSchG. In the case in dispute, however, this was not possible because the plaintiff could not reasonably be expected to be employed by the defendant in court due to the accusations made against him in the context of the dismissals and the disparagement of his person. This is not precluded by the fact that the plaintiff applied for provisional continued employment in the unfair dismissal proceedings. This application was directed at the process employment after the invalidity of the terminations had been established. Only if the plaintiff had refused further employment in such a case would he have acted inconsistently on his part. Here, however, it was a question of continued employment in the period up to the first-instance decision. It makes a difference whether the employee is to continue working despite the (serious) accusations made against him in the context of a termination for reasons of conduct or whether he can return to work “rehabilitated”, as it were, after winning the first instance in the proceedings for protection against dismissal.

Marian Härtel
Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.

Tags: Employment relationshipFederal Labor CourtKündigungLabor CourtLawsuitTestWorkers

Weitere spannende Blogposts

LSG Celle: Artists’ social security contributions may not be levied on the basis of an undifferentiated estimate

LSG Celle: Artists’ social security contributions may not be levied on the basis of an undifferentiated estimate
8. March 2023

In an exciting decision on the so-called Künstlersozialabgabe (artists' social security contribution), the Landessozialgericht Celle (Regional Social Court of Celle)...

Read moreDetails

Operator of a crowdworking platform is not to be regarded as an employer

Operator of a crowdworking platform is not to be regarded as an employer
6. December 2019

The Regional Labour Court of Munich has ruled that an agreement between a so-called crowdworker and the operator of an...

Read moreDetails

Geoblocking: A Turning Point for the Digital Single Market?

Lego brick still protected as a design patent
4. October 2023

Introduction Geoblocking is a complex but highly relevant issue that affects not only online stores, but also a wide range...

Read moreDetails

Cost trap for the self-employed: travel expense report

Cost trap for the self-employed: travel expense report
19. February 2019

Travel expense accounting is important My article yesterday on the risk of tax and/or social security audits generated some feedback....

Read moreDetails

The Darknet is not illegal!

Abusive warnings are punishable by law
7. November 2022

I don't have much to do with criminal law, except at the time of the state exam. That's why I...

Read moreDetails

Video recording and working time fraud – observe high hurdles

Twitter account needs approval of works council
16. November 2022

The Lower Saxony Regional Labor Court has ruled that video recordings cannot be used to prove working time fraud. A...

Read moreDetails

Axel Springer v. Eyeo: This time copyright

ECJ: Advocate General assesses sampling as copyright infringement
7. November 2022

After Axel Springer failed with its own lawsuit, based on competition law claims, at the Federal Court of Justice(some information...

Read moreDetails

New concept of material defects and computer games – what do you have to consider from 2022?

judge plays videogames in his spare time
7. November 2022

In a somewhat longer blog article, I just reported information about the new material defect concept for digital content, which...

Read moreDetails

BGH: Press organ may publish unsolicited book manuscripts

BGH: Press organ may publish unsolicited book manuscripts
7. November 2022

The Federal Court of Justice ruled that the publication of book articles by a member of the Bundestag on an...

Read moreDetails
Contractual regulations for no-code/low-code software development
Other

Contractual regulations for no-code/low-code software development

21. May 2025

No-code and low-code platforms enable rapid software development without extensive manual programming. Applications are increasingly being developed on the basis...

Read moreDetails
Erotic content on OnlyFans: Copyright and personality rights protection for creators

Erotic content on OnlyFans: Copyright and personality rights protection for creators

20. May 2025
Goodbye hustle culture? Startup life between 24/7 grind and work-life balance

Goodbye hustle culture? Startup life between 24/7 grind and work-life balance

19. May 2025
Startup buzzwords 2025: Bullshit bingo in marketing German Introduction: Bullshit bingo in marketing German

Startup buzzwords 2025: Bullshit bingo in marketing German Introduction: Bullshit bingo in marketing German

18. May 2025
From the metaverse boom to AI euphoria – a tech lawyer in the hype cycle

From the metaverse boom to AI euphoria – a tech lawyer in the hype cycle

17. May 2025

Podcastfolge

238a909c26a0302cbd4792cbd18e4922

Global challenges for start-ups – A legal guide

10. October 2024

This informative podcast offers a comprehensive insight into the legal challenges faced by start-ups when expanding internationally. The experienced lawyer...

Read moreDetails
c9c5d7fd380061a8018074c2ca5a81bf

Startups and innovation in Germany – challenges and opportunities

26. September 2024
75df8eaa33cd7d3975a96b022c65c6e4

Life as an IT lawyer, work-life balance, family and my career

26. September 2024
052c2ca5ca0421f0316b42073ce61791

Innovative business models – risk and opportunity at the same time

10. September 2024
9e9bbb286e0d24cb5ca04eccc9b0c902

Legal challenges of innovative business models

1. October 2024

Video

My transparent billing

My transparent billing

10. February 2025

In this video, I talk a bit about transparent billing and how I communicate what it costs to work with...

Read moreDetails
Fascination between law and technology

Fascination between law and technology

10. February 2025
My two biggest challenges are?

My two biggest challenges are?

10. February 2025
What really makes me happy

What really makes me happy

10. February 2025
What I love about my job!

What I love about my job!

10. February 2025
  • Privacy policy
  • Imprint
  • Contact
  • About lawyer Marian Härtel
Marian Härtel, Rathenaustr. 58a, 14612 Falkensee, info@itmedialaw.com

Marian Härtel - Rechtsanwalt für IT-Recht, Medienrecht und Startups, mit einem Fokus auf innovative Geschäftsmodelle, Games, KI und Finanzierungsberatung.

Welcome Back!

Login to your account below

Forgotten Password? Sign Up

Create New Account!

Fill the forms below to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
  • en English
  • de Deutsch
Kostenlose Kurzberatung