If an employer in the corona pandemic has to close his company for a longer period of time due to a state-mandated "lockdown", he does not bear the risk of loss of work (operational risk).

In particular, the company is then not obliged to pay employees any remuneration.

The fifth senate at the Federal Labor Court (Erfurt) clarified this highly controversial question in labor law on Wednesday.

Marcus Jung

Editor in business.

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Various instance courts, such as the regional labor court (LAG) Düsseldorf or Lower Saxony, had previously affirmed the operational risk on the part of the employer.

As the BAG explained, it was the first revision in connection with the corona pandemic.

State must stand up

It is up to the state to compensate for the financial disadvantages caused by the sovereign intervention to combat the pandemic, according to the explanatory memorandum. This was partly done with easier access to short-time work benefits. Insofar as such - as in the case of the plaintiff as a marginal part-time worker - is not guaranteed, this is due to loopholes in the social security regulatory system. “However, no labor law payment obligation on the part of the employer can be derived from the lack of subsequent claims,” emphasized the BAG judges (Ref .: 5 AZR 211/21).

In the original case, a woman from Bremen worked as a mini-jobber for 432 euros a month as a saleswoman in a sewing machine and accessories store. The Free Hanseatic City of Bremen closed the shop in April 2020, referring to the Corona general decree of March 23, 2020. The woman could no longer work and received no remuneration. In German labor law, the principle applies: without work, there is no wage. With reference to Section 615 of the German Civil Code - which grants a wage claim in the event of default in acceptance - the employees nevertheless demanded their remuneration. The closure of the company due to the "lockdown" is a case of the operational risk to be borne by the defendant as an employer.

On the other hand, the dealer defended himself in the lower court without success.

Now the Erfurt judges overturned the earlier decision of the Lower Saxony LAG.

In the lockdown, the operational risk created “in a certain company” did not materialize, it said on Wednesday.

Rather, the impossibility of work is the result of a sovereign intervention to combat a dangerous situation that affects society as a whole.

Heavily controversial legal issue

“The decision is of great importance for practice. For companies that do not respond with short-time work, it creates legal certainty and significant financial relief, ”said Wolfgang Lipinski, partner in the business law firm Advant Beiten of the FAZ. This ruling now calls on the legislature to take action when certain groups of workers, such as marginal employees, are exposed to the wage risk shouldn't wear, explains the labor lawyer.

This spring, the Düsseldorf Regional Labor Court saw it differently. It allowed a retired woman to claim wages in a lawsuit against her previous employer. In contrast to the case now decided in Erfurt, the gambling hall affected by the lockdown received state compensation payments for March and April 2020. The employer refused the wages with reference to a case of force majeure. At least in the opinion of the LAG Düsseldorf, this does not exist in the case of the corona pandemic - and even if short-time work has been applied for, the operational risk should remain with the employer. Since March 2020, the employment agencies had supported around 1.3 million companies and around 10 million people with short-time work benefits. More than 40 billion euros had been paid out for this by August 2021.

Important signal for restaurants, hotels and retail

Employment lawyer Nina Hartmann emphasizes the far-reaching effects on certain sectors such as retail, hotel and catering.

"There are numerous employees with 450-euro jobs who are not entitled to short-time work allowance, but at the same time were significantly affected by official company closings," says Hartmann.

In their own words, the verdict came as a surprise to them.

The BAG is opposing the lower courts and other state labor courts, which had affirmed an obligation to continue paying employers in the event of pandemic-related company closings.

"The Federal Labor Court does not follow the opinion of the Federal Ministry of Labor and Social Affairs, which in February 2020 assigned official company closures to the operational risk of employers," emphasizes the partner from the law firm CMS Hasche Sigle.

Keywords: federal labor court, revision, company, disadvantages, employer, work, risk, lockdown, judgment, authorities, wage entitlement, employees, state, closure, corona pandemic