An employer does not have to answer for a loss of wages as a result of a company closure during the corona lockdown in spring 2020.

According to a decision published on Thursday, the Federal Labor Court (BAG) already ruled this in May.

The highest German labor judges from Erfurt thus remained true to their case law: If authorities ordered the closure during the pandemic, this does not count as an operational risk for entrepreneurs (Az. 5 AZR 366/21).

Marcus Young

Editor in Business.

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With its appeal, the 5th Senate of the BAG overturned an earlier judgment of the Regional Labor Court (LAG) in Düsseldorf.

In the dispute, a former employee of an amusement arcade in Wuppertal sued for wages for seven working days lost in April 2020 due to the lockdown.

At that time, all arcades had to close due to the pandemic.

Because the woman had resigned at the end of the month, she later received no short-time work benefits.

In March 2021, the LAG granted the woman a claim of more than 666 euros.

The decision caused a stir throughout Germany at the time.

In the opinion of the labor judges from Düsseldorf, the employer had to bear the operational risk for external influences.

As a result, many employees in retail and gastronomy hoped that their employer would be able to make additional demands.

It is not up to the state to compensate for financial disadvantages

In its justification for the revision, the BAG stated that the plant closure in April 2020 was part of general government measures to combat the pandemic.

And not because there was a particular health risk in the arcade.

Therefore, the operator of the arcade does not have to bear the risk.

The 5th Senate made its fundamental decision on the subject of “wage entitlements in the lockdown” last autumn.

In a similar case, the judges stated that it was not up to the state to compensate for the financial disadvantages caused by sovereign intervention to combat the pandemic.

A safeguard was partly provided with easier access to short-time work benefits.

Insofar as this is not guaranteed, this is based on gaps in the social security regulation system.

"However, this does not mean that the employer is obliged to pay under labor law," emphasized the 5th Senate in October 2021 (Az.: 5 AZR 211/21).