Termination: Employer may not shift salary risk

The employer cannot stipulate in the contract that he does not have to pay employees any money in the event of termination until the matter is resolved. The Fifth Senate of the Federal Labor Court has changed its jurisprudence.

This article is part of the special topic Termination: How to do it right

The employer may not include the contract not from the outset establishthat in the case of an ineffective Termination the employee up to the Clarification the legal situation no wages The Fifth Senate of the Federal Labour Court (BAG), which had recently held a different view, now agrees with the Second Senate.

It was about Section 615 sentence 1 of the German Civil Code (BGB)The standard states that the employee is entitled to time off until a matter is resolved. Termination process seine Compensation receives, even if the employer... not More occupiedThis is the so-called Acceptance default wageThe contracting parties can, in principle, deviate from this provision. differ, but not – and this is now the view of the entire Federal Labour Court – when it comes to the financial livelihood the employee is leaving.

Im March 2023 The Fifth Senate had previously ruled that an employee could, after an invalid dismissal, no He could claim salary for the time he did not work. At that time, the Senate upheld the exclusion of the Section 615 sentence 1 BGB effective in the employment contract.

Livelihood must be secured

At the request of the Second Senate, the Fifth Senate has now stated its opinion. changed. Now the Federal Labor Court is in agreement: In principle, one can assume Section 615 sentence 1 BGB They may deviate in the contract, but only up to a certain limit: Endangered the exclusion of the default of acceptance wage the livelihood of the employee, he is ineffective. This is explicitly regulated for temporary agency work. Section 11 paragraph 4 sentence 2 half-sentence 1 AÜG, For other cases, there has been no specific regulation so far.

This results from the Protection concepts des Protection Against Unfair Dismissal Act (KSchG). The Senate refers to § 11 KSchGThis regulation states that in the case of an invalid dismissal, employees must have certain income offset against their benefits, specifically "against the wages, that his employer to the dismissal owes"This shows that the legislator assumes that the wage claim remains valid," the Federal Labor Court (BAG) stated. This interpretation also follows from other sections of the German Protection Against Unfair Dismissal Act (KSchG).

Only in exceptions – for example, in the case of termination without notice after Civil Code § 626 – is this protection of the employee permissible? cancel. 

The boss must not pass on the risk.  

If employers do this Risks an ineffective termination contractually on employees pass on If they could, the entire protection of labor law would be lost. worthlessThe judges in Erfurt clarified this. Because then it would hardly matter whether a Will the termination take effect immediately or only later? Employee would get No money anyway. 

Federal Labour Court, decision of 28 January 2026, file number. 5 AS 4/25

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