On January 14th, 2022, the Federal Labor Court published its reasons for the decision made on October 13th, 2021. According to this, in the case of a state-ordered company closure, there is no case of an operational risk to be borne by the employer in accordance with § 615 BGB.
In detail, this means the following:
In principle, according to the case law of the #BAG , the employer bears the #operational risk because he manages the company, organizes the operational processes, bears responsibility and receives the income (BAG 08.02.1957 – AZR 338/55).
The employer must therefore be responsible if he cannot employ the employee, be it due to a lack of raw materials, defective machines or software errors.
The most important consequence for employees is that the employer still has to pay the salary.
According to the BAG, however, the situation is different if the company is closed due to an order issued by the state.
A distinction should be made as follows:
- If the company is closed as a result of the employer’s own decision, for example to counteract a lack of customers or a sharp drop in sales, then it is an autonomous decision of the employer. Accordingly, the employer would face the operational risk with the result that the salaries of the employees would continue to be paid.
- However, if the temporary closure of the business is due to an official order as part of general measures to combat the pandemic and for reasons of civil protection, then the operational risk no longer applies. Accordingly, the employer’s obligation to continue to pay wages does not apply if the company is closed to protect the population from serious and fatal illnesses as a result of SARS-CoV-2 infections.
For further information, please contact:
Kira Laufs , Lawyer
ebl esch & kramer Rechtanwälte, Germany
e: moc.remarkhcse-lbe@sfual.k
t: +49 (0)211 60 22 40 – 0
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