No salary during lockdown

From our Labour Law department

In its judgement of 13 October 2021 – 5 AZR 211/21, the Federal Labour Court (Bundesarbeitsgericht – BAG) ruled that an employer does not owe its employees any remuneration if it has to temporarily close its business due to a general pandemic-related “lockdown” ordered by the state.

The BAG was based on the following case:

The employer runs a trade in sewing machines and accessories and has a shop in Bremen. The plaintiff works there as a part-time employee in sales for remuneration of € 432.00 per month. The branch in Bremen had to remain closed in April 2020 due to the “General Decree on the Prohibition of Events, Meetings and the Opening of Certain Establishments for the Containment of the Coronavirus” of the Free Hanseatic City of Bremen of 23 March 2020. For this reason, the employer could not employ the plaintiff and did not pay her any remuneration for the month of April.

In the opinion of the BAG, the plaintiff was not entitled to remuneration for the month of April 2020 under the aspect of default of acceptance. The performance of work was impossible due to the general decree. In this case, the employer did not bear the risk of being able to utilise the employee’s work. The work stoppage was based on an official decree to protect the population from severe and fatal courses of disease as a result of SARS-CoV-2 infections. This order had provided for a reduction of social contacts to a minimum and an almost nationwide closure of facilities that were not “systemically important”.

The impossibility to perform work was therefore not based on an operational risk of the employer, but on a situation of danger affecting the general public, which made sovereign intervention necessary for the protection of society.

It is the responsibility of the state to provide adequate compensation for the loss of wages through appropriate measures such as short-time allowances. Even if such compensation is not provided for by law, this circumstance is based on a gap in the social security system. However, employers could not derive an obligation to pay from this under labour law.

This decision of the BAG is to be assessed positively. There is no doubt that the employer bears the operational risk and thus also the risk of employing the employee profitably. Whether he has enough work for the employee should naturally have no relevance in this context.

However, the case of an almost nationwide lockdown is quite different. Such measures hit many employers with full force and – depending on the sector – make it impossible to continue operations. There would be no comprehensible reason why employers would also have to bear the wage risk in such a precarious situation. A lockdown has little to do with the entrepreneurial risk that any employer would otherwise have to take. Ultimately, in order to protect the general public, a company is closed down according to abstract criteria without a dangerous situation to be examined in each individual case.

This decision is relevant precisely because of the current political debate on further restrictions and lockdowns. The decision of the Federal Constitutional Court published on 30 November 2021 also makes a new lockdown more likely.
 
If you have any further questions on this topic, please do not hesitate to contact our experts in Labour Law.