No Unlimited Right to Disclosure: Employer’s Information Claims in Default-of-Acceptance Wage Disputes

In recent years, the Federal Labour Court (Bundesarbeitsgericht, “BAG”) has significantly developed the law on default-of-acceptance wage claims (Annahmeverzugslohn). Employers now have an enforceable right to information about job placement proposals made to the employee by the Federal Employment Agency (Agentur für Arbeit) or the Jobcenter. That right is grounded in the ancillary duty of good faith under Section 242 of the German Civil Code (BGB) (BAG, 27 May 2020 – 5 AZR 387/19).

Where the employer has sent the employee suitable and reasonable job offers during unfair-dismissal proceedings and the employee has failed—or failed adequately—to apply, the employee bears the burden of proving that any application would have been unsuccessful (BAG, 15 January 2025 – 5 AZR 273/24).

In its decision of 26 August 2026 – 5 AZR 37/25 – the BAG departed from this trend, limiting the scope of the employer’s information rights.

The Facts: Employee Claims Back-Pay; Employer Demands Extensive Disclosure

Following an ineffective dismissal, an employee claimed default-of-acceptance wages from his former employer. The employer invoked Section 11 No. 2 of the Dismissal Protection Act (KSchG), arguing that the claimant had “maliciously failed” to take up reasonable alternative employment.

In a counterclaim for staged disclosure (Stufenwiderklage), the employer demanded comprehensive information. It sought not only the placement proposals the employee had received from the Employment Agency or Jobcenter, but also details of which proposals the employee had applied to and with what result. The employer further demanded disclosure of the employee’s own independent job-search efforts and production of supporting documents.

The lower court—the Hessian Regional Labour Court (Hessisches Landesarbeitsgericht)—granted the disclosure request only in limited part, by way of a partial judgment.

The Ruling: Burden of Proving “Malicious Failure“ Lies With the Employer

The Fifth Senate of the BAG set aside the partial judgment on procedural grounds and remanded the case, holding that the counterclaim had been subject to an impermissible condition. It nevertheless laid down binding guidance for the further proceedings:

Under Section 242 BGB (good faith), the employer is entitled to information about which job proposals the employee received from the Employment Agency or Jobcenter and what those proposals contained. This confirms the BAG’s established case law from 2020.

A broader right to know whether, how, and with what result the employee applied to those proposals does not exist as an independently enforceable claim.

The BAG also rejected any right to information about the employee’s self-initiated job-search activities.

The burden of substantiating a defence of maliciously foregone interim earnings lies, in principle, with the employer. The employer must first set out in concrete terms what suitable and reasonable employment opportunities were available to the employee. Where the employer relies on placement proposals from the Employment Agency, it naturally lacks knowledge of whether such proposals were made at all and what they contained. For this reason alone, the BAG grants the employer a right to information under Section 242 BGB.

Information about applications and their outcomes is a matter for the employee’s secondary burden of proof. Only once the employer has made specific submissions regarding existing placement proposals must the employee explain in the proceedings how he or she responded. There is no prior, independently enforceable right of the employer to obtain this information.

Practical Recommendations for Employers

The BAG’s ruling draws a clear line between the employer’s legitimate need for information and the employee’s protection against sweeping disclosure obligations. An action for disclosure of the outcome of placement proposals is not available.

Employers are well advised to continue proactively sending employees concrete job listings from job portals, accompanied by a request to apply, in order to build the evidentiary foundation for their own burden of proof.