No Wage Claim in the Event of a Corona-Related Business Closure

In its ruling of October 13, 2021 (Case No.: 5 AZR 211/21), the Federal Labor Court (Bundesarbeitsgericht - BAG) decided that an employer who has to temporarily close his business due to a general "lockdown" ordered by the government to combat the Corona pandemic does not bear the risk of loss of work. Therefore, the employer is also not obliged to pay compensation to the employees under the aspect of default of acceptance.

Facts

The defendant operates a retail store and maintains a branch in Bremen. There, the plaintiff has been working as a marginal sales employee since October 2019, for which she receives a monthly remuneration in the amount of EUR 432.00.

In April 2020, the Defendant's store was closed due to an official order because of the Corona pandemic. Therefore, the plaintiff could not work and did not receive any remuneration.

The plaintiff is therefore seeking payment of her remuneration for the month of April 2020 on the grounds that the defendant is in default of acceptance. She is of the opinion that the defendant bears the operating risk for the plant closure due to official orders.

After the lower courts had ruled in favor of the plaintiff, the employer's appeal to the BAG was successful.

Reasons for the decision

In the opinion of the BAG, there was no case of default of acceptance, so that the plaintiff also had no wage claim for the month of April 2020.

The employer does not bear the risk of loss of work if, in order to protect the population from severe and fatal courses of disease as a result of SARS-CoV-2 infections, all facilities that are not necessary for the care of the population are closed by official order almost across the board. In such a case, an operational risk inherent in a particular business does not materialize. Rather, the inability to perform work is the consequence of a sovereign intervention to combat a risk situation affecting society as a whole.

It is the responsibility of the state to provide adequate compensation for the financial disadvantages suffered by the employees as a result 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 in the case of the plaintiff as a part-time employee - this is due to gaps in the social security regulatory system. However, the employer's payment obligation under labor law cannot be derived from the lack of subordinate claims.

Notes for practice

With its ruling, the BAG has clarified that employees have no wage claim in the event of a corona-related business closure. Therefore, if the employer has to close the business, this is a general risk of life, as the risk situation affects society as a whole. Rather, it was up to the state to ensure appropriate economic compensation when it imposed business closures on companies.

The special feature of the present ruling was that it was issued in the case of a mini-jobber who was not in an employment relationship subject to social insurance contributions and therefore did not have access to short-time allowance. However, in the opinion of the BAG, such a gap cannot lead to the employer being obligated to pay wages.