Bad news for mini-jobbers who could not work during the hard lockdowns: Without work, no money from the employer, the Federal Labor Court ruled in its first Corona judgment.
An appeal was made to politicians.
Erfurt - According to a decision by the Federal Labor Court, employers do not bear the operational risk if their businesses had to close by a general lockdown regulation. During this time, you are also not obliged to pay wages to mini-jobbers who were unable to work during the tough phases of the pandemic, in which large parts of public life had to rest. The Federal Labor Court decided on Wednesday in Erfurt in its first Corona judgment (5 AZR 211/21). The precedent came from Lower Saxony.
"The impossibility of work is the result of a sovereign intervention to combat a dangerous situation that affects society as a whole," declared the highest German labor judges.
The lack of financial disadvantage compensation for mini-jobbers by the state in the event of a Corona loss of work means that “no employer's obligation to pay under labor law can be derived”.
And the judges sent a message in the direction of politics.
While there is compensation for lost work for employees subject to social insurance through easier access to short-time working allowance, marginal employees like the plaintiff are faced with “gaps in the regulatory system subject to social insurance”.
The proceedings of a mini-jobber from a sewing machine shop in Bremen were negotiated.
After the ruling, she cannot insist on remuneration during a closure in April 2020 - it was about 432 euros.
In contrast to the lower courts in Lower Saxony, the federal judges did not follow the plaintiff's argument that the business closings by the Bremen authorities were part of the operational risk that the defendant small business owner had to bear.
The Bonn labor lawyer Gregor Thüsing considers the decision to be understandable.
"The pandemic is a general risk to life, it affects the whole of society," said Thüsing of the German press agency.
"It is not a risk that can only be attributed to the employer, who therefore does not bear the wage risk."
"The first Corona ordinances were the most far-reaching," said the presiding judge Rüdiger Linck in the hearing.
Whether all regulations in Germany had this scope would have to be examined in each specific case.
It was important to Linck to find out that there was no alternative employment for the plaintiff in the small branch.
It is not possible to say exactly what effects the judgment will have.
According to the HDE trade association, there are around 808,000 marginally employed people in German retail alone.
Some of the retail trade was affected by the officially ordered shop closings, but not the food and drugstore sector.
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Neither the HDE nor the Verdi union were able to answer how many mini-jobbers, like the plaintiff, received no pay during the lockdown phases.
After all, the judgment focused on a large number of people who are dependent on mini jobs.
There are currently no signs of a huge wave of lawsuits, said spokesmen for the association, the union and the Federal Labor Court.
In larger companies such as department stores, mini-jobbers were often assigned other tasks, said Petra Ringer from Verdi.
Some have also switched to the grocery trade.
“People were needed desperately.” Nobody could really say what it looked like in the many small specialist shops.
"But there will have been problems," said Ringer.
Labor lawyer Thüsing does not expect that mini-jobbers who received their wages when the company was closed will now have to pay it back.
“There will be no demands for repayment.
Most contracts also have preclusive periods. ”Mini-jobbers are employees who earn a maximum of 450 euros a month or who work a maximum of 70 days a year.
You do not pay any social security contributions.
dpa
