Interim employment after termination can be a crucial option for employees to continue receiving salary during a dismissal protection proceeding and avoid an employment gap. Yet not every offer from the employer is reasonable — and that was precisely what the Hamm Higher Labor Court had to decide. The judgment of August 6, 2026 (Ref. 18 SLa 24/26) shows when employees must accept the offer and when they can hope for default-of-acceptance pay.
What is interim employment and why does it matter?
Interim employment means the employee continues working provisionally during the pending dismissal protection proceeding — usually under the existing working conditions. The employer often makes this offer to avoid falling into default of acceptance. Because if the employer refuses to accept the employee’s work offer although the employee is willing to work, the employer must continue paying the salary under § 615 BGB without receiving the counter-performance. Through interim employment, the employer secures the workforce and limits the financial risk.
For the employee, interim employment has clear advantages: they stay on the payroll, social security contributions continue to be paid, and they can remain actively involved in the workplace. However, they work subject to the proviso that the employment relationship ends by the termination date if the dismissal protection action fails. Then the employment ends with the notice date, and there is no claim to continued employment beyond that point. Nevertheless, interim employment can be the financially better alternative for many employees, especially when a lengthy legal dispute looms.
The case before the Hamm Higher Labor Court: hammer throw in the warehouse — dismissal and default of acceptance
In the case decided by the Hamm Higher Labor Court, an order picker in warehouse logistics had been employed since January 18, 1993 and last earned a monthly gross salary of €2,917.45. On February 9, 2023, an incident occurred: a colleague transported stretch film through the warehouse on an electric pallet truck and sounded the horn several times. The order picker felt disturbed, a verbal altercation ensued. Shortly afterward, the employee threw a plastic hammer weighing about 370 grams toward the colleague, who had his back turned. The hammer struck the rolling door next to the colleague, breaking off the hammer head.
The employer then gave ordinary notice on February 23, 2023, effective August 31, 2023. The employee filed a dismissal protection action before the Detmold Labor Court, which was dismissed. After the termination, the employer requested by lawyer’s letter that the employee declare readiness for interim employment. The employee instead claimed default-of-acceptance pay — i.e., the salary for the period after the termination in which he had offered his work performance but the employer did not accept it. The Detmold Labor Court dismissed the action, and the Hamm Higher Labor Court also rejected the employee’s appeal.
When is interim employment after termination reasonable?
The central question was whether the employer’s offer of interim employment was reasonable for the employee. The Hamm Higher Labor Court clarified: such an offer need not meet the strict form of a contractual offer under § 145 BGB. It suffices if the employer refers to the existing working conditions and the remuneration follows from § 612 (2) BGB. In the concrete case, the offer was therefore sufficiently specific.
Furthermore, the court ruled that interim employment after termination can also be reasonable after a conduct-based dismissal — at least when the facts underlying the dismissal are undisputed and only the legal assessment remains open. Here, the hammer throw itself was undisputed. Only whether the employee acted with intent to injure was disputed. The Hamm Higher Labor Court saw this as a pure question of law that does not call the reasonableness of interim employment into question. The employee therefore should have accepted the offer. Because he did not, he could not claim default-of-acceptance pay.
This judgment shows: employees should not hastily reject an offer of interim employment merely because the dismissal rests on alleged misconduct. What matters is whether the facts that led to the dismissal are undisputed between the parties or whether factual questions still need clarification. With undisputed facts and only a legal evaluation pending, interim employment after termination is generally reasonable.
Your rights as an employee: pay during default of acceptance
If the employer falls into default of acceptance because he does not accept the employee’s work offer although the employee is willing to work, he must continue paying the agreed salary — without the employee having to actually perform the work. This follows from § 615 BGB. However, the employer can end the default of acceptance by offering the employee reasonable continued employment, for example in the form of interim employment. If the employee rejects such an offer without good cause, he loses his claim to default-of-acceptance pay.
For employees this means: you should not lightly decline an offer of interim employment. If the offer refers to the previous working conditions and the dismissal facts are undisputed, a court will generally consider the offer reasonable. The question of whether interim employment after termination is reasonable decides your claim to default-of-acceptance pay. Whoever rejects it then risks going empty-handed. Anyone who is unsure should urgently consult a specialist lawyer for employment law before making a declaration. Even after winning a dismissal protection proceeding there are important points to observe — for instance when enforcing wage claims, as we explain in a further article.
Accept or reject interim employment? Strategic considerations
The decision whether to accept interim employment should be well considered. On the one hand, it secures your income and social-security protection during the proceedings. On the other hand, continuing to work in a tense workplace atmosphere can be stressful — especially if the dismissal is based on a conflict with superiors or colleagues. Accepting the offer can also weaken your negotiating position in a later settlement, because the employer knows you are not dependent on payments.
Conversely: if you reject an offer although it is reasonable, you may lose your claim to default-of-acceptance pay. This can lead to significant financial losses during the ongoing proceedings. It is therefore advisable to examine the concrete circumstances carefully: are the dismissal facts undisputed? Is it only a legal evaluation? How is the mood at the workplace? Have an independent specialist lawyer advise you, who can assess the prospects of your action and judge the reasonableness of the offer. The question of whether you are entitled to a recall after release from duties can also be relevant in this context.
What does the judgment mean for your dismissal protection action?
The Hamm Higher Labor Court’s judgment has practical implications for many dismissal protection proceedings. Employers will increasingly try to limit their payment obligations through an offer of interim employment. Employees should therefore clarify with their lawyer at the very first consultation how they want to react to such an offer. A reasonable offer can extinguish the claim to default-of-acceptance pay — this must be factored into the litigation strategy.
At the same time, the judgment shows that courts do not interpret reasonableness too strictly. Anyone who is to be continued in employment after a conduct-based dismissal cannot rely solely on the argument that the dismissal is based on misconduct. The decisive factor is whether the facts are undisputed. Only if factual questions remain open — for example because the employee disputes the incident or gives a different account — can interim employment be unreasonable. In such cases, employees should pursue their rights consistently and not let themselves be pressured.
Conclusion and recommendations
The Hamm Higher Labor Court’s judgment makes clear: interim employment after termination is often both an opportunity and an obligation for employees. If the offer refers to the existing conditions and the dismissal facts are undisputed, you must generally accept it to preserve your pay claim. Whoever rejects the offer risks losing default-of-acceptance pay.
Our recommendation: examine every offer of interim employment carefully and have a specialist lawyer for employment law advise you. Only then can you assess whether the offer is reasonable and what consequences acceptance or rejection will have for your dismissal protection proceedings. If you need financial support to enforce your rights, a litigation funder like RechtStark can cover the costs of a dismissal protection proceeding — the legal representation is always handled by an independent lawyer. This lets you focus on what matters: your professional future.
Note: This article is for general information purposes only and does not replace individual legal advice. For a free initial assessment of whether litigation funding may be an option for your case, you can contact RechtStark.