Continued payment of wages in case of non-appearance at work?

• Employment Law
• SME

In principle, employees are not entitled to wage payment if they do not show up at work. It is decisive in whose sphere of risk the reason for the prevention lies in the work performance. With the new coronavirus, the complexity of the qualification of the sphere of risk is currently becoming apparent.

In labour law the principle of “no wage without work” applies. There are various exceptions to this principle. One exception is default of acceptance by the employer. This is the case if the employee cannot perform his work for a reason that lies within the employer’s sphere of responsibility (sphere of risk). In this case, the employer is not at fault and the cause can be coincidence or force majeure.

The employer’s sphere of risk is only affected if an event specifically affects the operational activity in relation to the actual work performed. In such a case, the employer must pay wages for the entire duration of the hindrance despite the absence of work.

Conversely, the employer is not obliged to continue to pay wages if the employee is responsible for the prevention of work (risk sphere). This is done with the social corrective in cases where the incapacity for work is the employee’s fault and the employee is not at fault (including illness and accidents).

The current situation with the new coronavirus in particular shows how complex the qualification of the risk sphere and thus the question of the obligation to continue to pay wages is.

A differentiated assessment must be made as to whose risk atmosphere something lies, taking into account both the general situation and the individual situation. It may also be the case that an event such as the closure of a company by the authorities due to a pandemic lies neither in the risk sphere of the employer nor of the employee.