No en­ti­tle­ment to con­tin­ued pay­ment of salary for mar­gin­al­ly em­ployed per­sons dur­ing Coro­na Lock­down

If the em­ploy­er is forced tem­porar­i­ly close their busi­ness due to a gov­ern­ment-im­posed gen­er­al "lock­down" to com­bat the Coro­na pan­dem­ic, they ba­si­cal­ly do not bear the risk of the loss of work. The em­ploy­er is not oblig­ed to pay their em­ploy­ees salary un­der the as­pect of de­fault of ac­cep­tance.

The Facts (short­ened and sim­pli­fied)

The plain­tiff has been work­ing in the de­fen­dan­t's busi­ness as a mar­gin­al em­ploy­ee (EUR 432 per month) since Oc­to­ber 2019. In April 2020, the com­pa­ny had to close due to the gen­er­al ad­min­is­tra­tive or­der. There­fore, the plain­tiff was not able­to work and did not re­ceive any salary.

With her com­plaint, she sought pay­ment of her salary for the month of April 2020 from the point of view of de­fault of ac­cep­tance. Her opin­ion is that the clo­sure of the busi­ness due to an of­fi­cial or­der is a case of op­er­a­tional risk to be borne by the de­fen­dant as em­ploy­er. The de­fen­dant, on the oth­er hand, sought dis­missal of the ac­tion, claim­ing that the mea­sures or­dered to com­bat the pan­dem­ic con­cerned the gen­er­al risk of life.

The Court of Labour (ArbG) and the Re­gion­al Labour Court(LAG)grant­ed the com­plaint. In re­sponse to the de­fen­dan­t's ap­peal, the Fed­er­al Labour Court (Bun­de­sar­beits­gericht, BAG) over­turned the ap­peal rul­ing and dis­missed the com­plaint (BAG, rul­ing of 13 Oc­to­ber 2021 - 5 AZR 211/21).

Rea­sons for de­ci­sion

The plain­tiff is not en­ti­tled to pay­ment of salary for the month of April 2020, in which her work per­for­mance and its ac­cep­tance by the de­fen­dant was im­pos­si­ble due to the of­fi­cial­ly or­dered plant clo­sure, un­der the as­pect of de­fault of ac­cep­tance.

The em­ploy­er also does not bear the risk of loss of work if- as in the present case - the pop­u­la­tion must be pro­tect­ed from se­vere and fa­tal cours­es of dis­ease such as SARS-CoV-2 in­fec­tions and there­fore so­cial con­tacts are re­duced to a min­i­mum by of­fi­cial or­der and all es­tab­lish­ments not nec­es­sary for the care of the pop­u­la­tion are closed al­most na­tion­wide. In such a case, an op­er­a­tional risk in­her­ent in a par­tic­u­lar busi­ness is not im­ple­ment­ed.

The im­pos­si­bil­i­ty of work is rather the con­se­quence of a sov­er­eign in­ter­ven­tion to com­bat a dan­ger­ous sit­u­a­tion af­fect­ing so­ci­ety. It is the re­spon­si­bil­i­ty of the state to pro­vide ad­e­quate com­pen­sa­tion for the fi­nan­cial dis­ad­van­tages suf­fered by the em­ploy­ees be­cause of the sov­er­eign in­ter­ven­tion - as has been done in part with the fa­cil­i­tat­ed ac­cess to short-time al­lowance. In­so­far, as such com­pen­sa­tion is not guar­an­teed - as is the case of the plain­tiff as a mar­gin­al­ly em­ployed per­son - this is due to gaps in the so­cial se­cu­ri­ty sys­tem. How­ev­er, the em­ploy­er's pay­ment oblig­a­tion un­der labour law can­not be de­rived from the ab­sence of down­stream claims.

This is bit­ter pill to swal­low for mar­gin­al­ly em­ployed work­ers who are not em­ployed in the food re­tail or drug­stores but in spe­cialised trade and were there­fore af­fect­ed by the clo­sure.

At­ten­tion: This ar­ti­cle has been pre­pared to the best of our knowl­edge and is based on the le­gal sit­u­a­tion at the time of pub­li­ca­tion of this ar­ti­cle. How­ev­er, de­spite care­ful edit­ing, no li­a­bil­i­ty can be ac­cept­ed.