Transfer of Business does not necessarily lead to default of acceptance

In its judgement of 16 December 2021 – 1 Ca 305 b/21 – the Labour Court of Neumünster (ArbG Neumünster) ruled that the prior default of acceptance of the business seller does not continue without further ado with the business acquirer. In order to justify further claims of default of acceptance, the employee may be obliged to offer his or her work performance again.

The ArbG Neumünster was based on the following case:

The seller of the business operated a men’s hairdressing salon in a shopping centre and employed the plaintiff as well as the later acquirer of the business. Due to the government-imposed “lockdown”, the salon had to close from 16.12.2020 to 28.02.2021. On 01.03.2020, the seller of the business organises a meeting which was attended by all workers. There he informed them that the hairdressing salon would no longer be operated. In addition, one of his employees had been offered the continuation of the business. On 15 March 2021, the seller of the business sold the inventory to the above-mentioned acquirer of the business who had previously been employed. The acquirer opened a men’s hairdressing salon at the same location on 1 April 2021 and took over one employee of the seller of the business. As a result, the plaintiff invoked a transfer of business and at the end of November asserted claims for default of acceptance for the period 01.04.2021 to 30.11.2021 in court. The labour court in Neumünster assumed that there was a transfer of business, but rejected any claims for default of acceptance wages against the acquirer of the business. The work had not been offered in the period from the transfer of the business from 1 April 2021 to 30 November 2021.

The assertion of the claims also took place only afterwards, so that no offer would result retroactively from this either. The default of acceptance of the seller of the business, who ultimately released the plaintiff from work for the month of March, would not continue without further ado in relation to the acquirer of the business. Rather, the plaintiff would have had to offer her work performance again.

Although the acquirer of the business fully assumed the rights and obligations arising from the employment relationship, this liability was not unlimited. In any case, a limit had to be drawn if the basis of the justified claims had changed significantly after the transfer of the business. The plaintiff could not assume an unlimited default of acceptance due to the changed circumstances (here: reopening) if the question of the transfer of the business was disputed. Rather, the plaintiff was obliged to re-establish the default of acceptance after the reopening by making an appropriate offer to the new owner of the business.

The present constellation was also not comparable to the previously decided case of the BAG (judgement of 21 March 1991 – 2 AZR 577/90), in which the seller of the business was in default of acceptance due to a dismissal and lost the subsequent dismissal protection proceedings.

The ruling of the ArbG Neumünster comprehensibly takes into account the interests of the party acquiring the business and avoids unlimited liability for default of acceptance claims. The case law on default of acceptance on the part of the acquirer of the business is manageable. There is no current case law of the BAG, so that the risk on the side of the business acquirer should not be underestimated.

Nevertheless, the ArbG Neumünster differentiates between dismissal cases and the present case in a manner that is in the interests of the parties. After all, the reopening of the salon led to significant changes even without a termination.

It would be unfair to grant the employee – despite his inactivity – claims arising from default of acceptance. It remains to be seen whether this case law will prevail. This judgement is convincing and should in any case be assessed positively from the perspective of the acquirer of the business.