D as in Default of acceptance
Am I entitled to a salary if I am unable to work?
In principle, there is no entitlement to wages in an employment relationship if no work is being performed. There are exceptions, for example, on public holidays, when the employee is ill or on paid leave.
Am I also entitled to a salary if my employer is responsible for my not being able to work?
Another case is the default of acceptance (Annahmeverzug) by the employer. A default of acceptance occurs when the employee offers his or her services, but the employer does not accept them. For example, if the power in the office is out and thus the employee is not able to work, the employer must still pay him or her because it is the employer’s responsibility to provide a functioning office. In this case, the employee retains his or her right to remuneration because it falls within the area of responsibility of the employer that no work has been done.
In practice, the most frequent cases of default of acceptance are dismissals, when the employee appeals against the dismissal and the labor court finds that the dismissal was invalid after the expiration of the notice period. In this case, the employment relationship continues uninterrupted and the employer must pay salary in arrears for the period after the end of the notice period, even though the employee did not work during this time. However, the employee must pay back the social security benefits received during this period.
What is a litigation employment relationship?
In order to prevent default of acceptance, some employers arrange a litigation employment relationship in which the employee continues to work as long as the proceedings of the protection against dismissal have not yet been decided. In this way, the employer continues to pay the salary, but also receives compensation for the salary.
Please note: This is a very general overview on the subject of default of acceptance under german labor law. If you need help in your particular case, please do not hestitate to contact me or book your appointment. I’m happy to help.