I won my unfair dismissal claim – am I owed the salary for the months I didn't work?

You won your unfair dismissal case but went months without pay. I explain what your employer must pay in arrears and what can be deducted from it.

The employment tribunal has ruled: your dismissal was invalid and the employment relationship continues. The problem is that your employer has paid you nothing since the dismissal, and you did not work during that time either. That raises a question. For many clients, a surprising amount of money turns out to hang on the answer: who bears the risk of those months?

In short

In principle, yes: your employer must pay you the salary for the whole period from the end of the notice period until the judgment becomes final – this is what German law calls “Annahmeverzugslohn” (pay during the employer’s default in acceptance) under § 615 sentence 1 BGB. Against this, however, three things are set off. First, whatever you earned elsewhere during that time. Second, whatever you deliberately failed to earn. Third, any unemployment benefit the Federal Employment Agency (Agentur für Arbeit) paid you. How much the back pay finally comes to depends heavily on how you conducted yourself in the meantime. What matters is what you did – or failed to do.

How I can help

• Calculating the back pay for the entire duration of the proceedings, including default interest
• Checking what information your employer is actually entitled to demand from you
• Fending off excessive attempts by the employer to set off deductions
• Enforcing the back pay – out of court and, if necessary, through a separate action for payment

When the claim starts and when it ends

Back pay does not begin when the dismissal is received. It begins on the day after the ordinary (or extraordinary) notice period expires – that is, on the day you would have carried on working had the invalid dismissal never happened. It ends, as a rule, when the judgment establishing that the dismissal was invalid becomes final. But it can also end earlier. That is the case if, in the meantime, you take up permanent, open-ended employment elsewhere. By doing so, you yourself signal that you are no longer interested in continuing the old employment.

You do not need to make a separate offer of your services for this to apply: by dismissing you, the employer has itself made clear, in no uncertain terms, that it will no longer accept your work. It is therefore automatically in default of acceptance, without any need for you to report to the gate each day. The basics of the claim itself – deadlines, procedure, prospects of success – I have set out in a separate article on the course of an unfair dismissal claim. Here I deal solely with the time that follows.

What the employee must have set off

§ 11 KSchG names three items that are deducted from the back pay:

1. Money actually earned elsewhere. If you worked for another employer in the meantime, that income is set off in full. This applies even where it was lower than your old salary. You then receive only the difference in arrears.
2. Earnings deliberately not made. If you knowingly turned down a reasonable position, or did not seriously apply for work at all, you will be treated as though you had earned there. The precondition is that you knew about it. In other words, you must have been aware that the position was open to you. The yardstick for reasonableness is § 140 SGB III. In the first three months of unemployment, you need not accept a position whose pay is more than 20 per cent below your previous earnings as they were relevant for unemployment benefit. That threshold then rises, up to the sixth month, to 30 per cent. From the seventh month onwards, in principle any position is reasonable whose net pay does not fall below the unemployment benefit. Commuting times, and – from the fourth month – a reasonable relocation, also come into play.
3. Public-law benefits, above all unemployment benefit I (Arbeitslosengeld I). Important: this amount is indeed deducted from your back pay on paper. But it does not go to the employer. The employer must reimburse it directly to the Federal Employment Agency. So you are not paid twice. Nor, however, do you lose anything – the reimbursement obligation runs between the employer and the authority.

The dispute over information: what the employer may know – and what it may not

So that the employer can assess the set-off at all, it has a claim to information against you based on good faith (§ 242 BGB). How far this claim reaches is, in practice, the real point of contention. It regularly decides sums running into four or five figures.

It is settled that you must provide information about specific job referrals. These are the referrals the Federal Employment Agency put to you during your unemployment. Only then can the employer judge whether you turned down a reasonable position. What you do not owe, by contrast, is information about your own, self-initiated applications and how they turned out. Your application history remains your own business. The same goes for the reasons why an application did not succeed. To that extent the employer cannot interfere in your job search, as long as there is no concrete indication of bad-faith conduct. This boundary is currently being sharpened in several ongoing proceedings. The reason: employers are increasingly trying, through far-reaching demands for information, to shift the burden of proving bad faith onto the employee. Yet that burden of proof actually lies with the employer.

How much you end up with – calculation and interest

The starting point is your previous gross salary for each individual month of the employer’s default. This also includes regular allowances, commissions or bonuses, in so far as they were owed under the employment contract. From this, the set-off amounts are deducted month by month. Default interest accrues on the remaining back pay from the point at which each month’s salary would have fallen due. The interest rate under § 288 (1) BGB is five percentage points above the base rate. In a case that drags on for eight, ten or twelve months, this adds up to noticeably more. It amounts to more than the bare sum of salary would suggest.

A typical case

A client is made redundant with effect from 31 March. Her claim succeeds. The judgment becomes final in November of the same year. Until the end of June she draws unemployment benefit. From July she finds a part-time position paying around half her previous salary. The result: for April to June she is entitled to her full salary. From this the unemployment benefit is deducted, which the employer must reimburse directly to the Agency. For July to October she receives the difference between her old and new salary in arrears. Because she had applied for work continuously and could prove it, “earnings deliberately not made” plays no part in her case. It would have been different had she made no effort at all to find a new position in the early months.

Common mistakes

• Doing nothing during the proceedings. Some believe that while an unfair dismissal case is ongoing, they need not lift a finger. Anyone who thinks this risks having notional earnings set off on the ground of bad-faith failure to earn.
• Being too free with information. Clients often hand the employer their entire application file, complete with rejections, without even being asked. None of that is owed. It merely creates extra ground for attack.
• Overlooking exclusion periods. Many employment contracts and collective agreements contain forfeiture clauses. These clauses also apply to back pay and require it to be asserted in writing within a few months of falling due. Anyone who only turns their mind to the back pay after the judgment is final may already have lost part of it.
• Misunderstanding the “double” set-off. Some clients fear that the unemployment benefit they received will be “taken away” from them twice. In fact it flows straight back from the employer to the Agency. It is not reclaimed from the client personally.

Your next step

If, despite a final judgment, the employer does not pay voluntarily or pays only part of the sum, one further step remains: a separate action for payment before the employment tribunal. With this claim you quantify the back pay and enforce it specifically.

Frequently asked questions

Do I have to register as unemployed while my unfair dismissal claim is running?

Yes, you should – not only because of the unemployment benefit, but because registering with the Federal Employment Agency also documents that you are making efforts to find new work. That protects you later against the accusation of having failed, in bad faith, to earn.

What happens if I take a lower-paid job while the case is ongoing?

The lower earnings are set off against the back pay, so you receive only the difference in arrears. Even so, this is usually better than not working at all – inactivity carries the greater risk that notional, higher earnings will be attributed to you.

Do I have to show the employer my job applications and rejections?

No. You are obliged to provide information about job referrals from the Federal Employment Agency, not about your own applications and their outcome. If the employer demands more, you should have this checked by a lawyer before you respond.

When does the claim to back pay become time-barred?

Alongside the ordinary limitation period, most employment relationships are subject to significantly shorter exclusion periods under the employment contract or a collective agreement, which can start to run while proceedings are still ongoing. Check your employment contract early and, if in doubt, assert the back pay in writing as a precaution rather than waiting for the final judgment.

Does the employer pay the back pay automatically once the judgment is final?

Legally, nothing happens automatically – the judgment in the unfair dismissal proceedings only establishes that the employment relationship continues; it does not, as a rule, quantify any specific sum to be paid. You must calculate the amount of the back pay yourself, assert it against the employer and, if necessary, bring a separate claim to enforce it.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-09-20.

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