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Author: Patrick Stumpp
In the event of a company closure due to a general lockdown ordered by the state, the employer is not obliged to continue paying wages.
The Federal Labour Court (Bundesarbeitsgericht, BAG) has ruled that a mini-jobber is not entitled to wages if she was unable to work due to the pandemic-related official closure order (Urt. v. 13.10.2021, Az. 5 AZR 211/21).
The employer operates a trade in sewing machines and accessories. The plaintiff has been employed as a marginal employee at the branch in Bremen since October 2019. The monthly wage amounts to € 432.00. As of April 2020, the shop was no longer allowed to open due to the general lockdown. The company then introduced short-time work for some employees.
This was not possible for others – such as the employee who later filed the complaint. As a marginally employed person in a mini-job, she could not receive short-time work benefits due to the lack of legal requirements. The employer therefore did not pay her wages for the lockdown period in April 2020. The employee now sued for continued payment of wages. She based her legal opinion on the fact that the closure of the business due to official orders was a case of operational risk to be borne by the defendant as employer. Operational risk is understood to mean that the employer must pay its employees their wages even though it cannot employ them.
After the first two instances had ruled in favour of the plaintiff, the Federal Labour Court has now dismissed the action. The court did confirm that the principles of operational risk should not be changed. However, the court was now of the opinion that the employer did not bear the risk of a loss of working hours if, in order to protect the population from serious and fatal courses of disease, official orders closed down all facilities not necessary for the care of the population almost nationwide. This situation did not concern the operational risk inherent in a particular enterprise. Rather, the impossibility of work was the consequence of a sovereign intervention to combat a dangerous situation affecting society as a whole. However, the employer was not liable to pay for this.
The court thus clarified that if nationwide plant closures for reasons of health protection affect society, employers and employees as a whole equally as a sovereign act, the financial consequences are also not to be borne by the employers.
The Oberbadische Zeitung