The Federal Labour Court (Bundesarbeitsgericht – BAG) has ruled on a Corona claim for the first time. By judgement of 13 October 2021 (docket number: 5 AZR 211/21) the Court has ruled that an employer does not bear the risk of loss of work and is not obliged to pay remuneration to employees under the aspect of default of acceptance if it must temporarily close its business due to a government-imposed general “lockdown” to combat the Corona pandemic.

1. Facts In this case, the defendant operates a trade in sewing machines and accessories and maintains a branch in Bremen. Since October 2019, the claimant has been working there as a marginal employee, so-called mini jobber, in sales for a monthly remuneration of 432.00 Euro. In April 2020, the shop was closed due to the “General Decree on the Prohibition of Events, Meetings and the Opening of Certain Establishments for the Containment of Corona Virus” of the Free Hanseatic City of Bremen of 23 March 2020. Therefore, the claimant could not work and did not receive any remuneration. As a marginally employed person, she was also not covered by any short-time work regulations through which she could have received short-time work benefits. In her action, she required payment of her remuneration for the month of April 2020 on the grounds of default of acceptance. She argued that the closure of the business due to official orders was a case of operational risk to be borne by the defendant as employer. The defendant, on the other hand, argued that the measures ordered by the Free Hanseatic City of Bremen to combat the pandemic concerned the general risk of life, which could not be controlled and had to be borne equally by everyone.

2. Ruling The lower courts upheld the claim. However, the defendant’s appeal was successful. According to the court, the claimant was not entitled to remuneration for the month of April 2020, in which her work performance and its acceptance by the defendant employer was impossible due to the officially ordered shutdown, under the aspect of default of acceptance. The employer also does not bear the risk of the loss of work if, as in this case, in order to protect the population from severe and fatal courses of disease as a result of SARS-CoV-2 infections, social contacts are reduced to a minimum by order of the authorities 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 would not be realised. The impossibility of work performance was rather the consequence of a sovereign intervention to combat a dangerous situation affecting the whole of society. It was the responsibility of the state to ensure adequate compensation for the financial disadvantages suffered by the employees as a result of the state intervention – as was partly the case with the facilitated access to short-time allowance. Insofar as such compensation is not guaranteed – as in the case of the claimant 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 this gap.

3. Conclusion The claimant will not be able to invoke compensation claims against the state, as such claims are simply not provided for by law for the officially ordered closure of entire businesses without risk of contagion. Up to now, the employer has borne the operational and economic risk under section 615 sentence 3 German Civil Code (Bürgerliches Gesetzbuch – BGB) almost without exception. For the special situation in the context of the Corona pandemic, the BAG has now made an important clarification. The fundamental allocation of the economic risk to the employer is already laid down in the law. However, this results from the idea that the employer must be responsible for a particular potential danger and the controllability over his business. However nationwide plant closures for reasons of health protection affect society, employers and employees equally. According to the Federal Labour Court (BAG), this risk in the contractual relationship between employer and employee is in any case not to be imposed on the employer, but to be assigned to the whole society. Even if the result may seem surprising at first glance regarding labour law, which is particularly characterised by the protection of employees, this is a stringent decision that is convincing according to the principles of contract law with reciprocal risk spheres. It is now up to the legislator to ensure adequate compensation for the financial disadvantages suffered by marginal workers as a result of the sovereign intervention.