No obligation to pay remuneration for “mini-jobbers” despite business closure due to pandemic – First “Corona” ruling of the Federal Labour Court of 13 October 2021

In its judgement of 13 October 2021, the Federal Labour Court (Bundesarbeitsgericht – BAG) ruled that marginally employed workers, so-called “mini-jobbers”, are not entitled to a default of acceptance wage even in the case of a pandemic-related business closure, as the employer does not bear the risk of the loss of work.

While the two lower courts still considered the closure of the business ordered by the authorities due to the pandemic to be a business risk to be borne by the employer and upheld the “minijobber’s” claim for payment, the BAG now clearly rejected this.

The court clarified that the impossibility to perform work resulted from the measures ordered to combat the pandemic and that even in the case of financial disadvantages of “mini-jobbers” – who in particular “fall out” of the social security system and, for example, are not entitled to short-time allowance – the employer cannot derive any obligation to pay under labour law. Rather, it was the task of the state to compensate for such disadvantages.

With this decision, the BAG has set the “course” for default of acceptance during the pandemic and reduced the financial pressure on employers at least “somewhat”.

[BAG, Urteil vom 13. Oktober 2021 – 5 AZR 211/21; Vorinstanzen: LAG Niedersachsen, Urteil vom 23.3.2021 – 11 Sa 1062/20 und ArbG Verden, Urteil vom 29.9.2020 – 1 Ca 391/20]