“Mini-jobbers”: corona landmark decision of the BAG?

The German Federal Labour Court (Bundesarbeitsgericht, BAG) made many headlines with its decision of 13 October 2021 (5 AZR 211/21) concerning the remuneration claim of a so-called “mini-jobber” (the German term used to describe someone in marginal part-time employment). In the proceedings at issue, the mini-jobber had demanded remuneration from the employer for the month of April 2020. The employer's business, a shop belonging to a chain store, had been closed in April 2020 due to the "General Decree on the Prohibition of Events, Meetings and the Opening of Certain Businesses in order to Contain the Coronavirus" (Allgemeinverfügung über das Verbot von Veranstaltungen, Zusammenkünften und der Öffnung bestimmter Betriebe zur Eindämmung des Coronavirus) of the Free Hanseatic City of Bremen of 23 March 2020. The mini-jobber had been unable to work and the employer did not pay the wage.

Decision of the BAG

While the lower courts granted the wage claim, the BAG admitted the sued company’s appeal on points of law. According to the press release, which is all that is available to date, a wage claim does not exist on grounds of default of acceptance (Section 615 German Civil Code (Bürgerliches Gesetzbuch, BGB)). The BAG states that the employer's business risk is not realised in this case. Rather, this concerns an official closure order, i.e. a sovereign intervention, whose purpose is to protect the population as a whole. In such a case, the state has to compensate for the disadvantages. As short-time work benefit does not apply to mini-jobbers, there are - according to the BAG in the press release - "gaps in the social security system". However, these gaps do not then have to be borne by the employer.

The lower court took quite a different view

Insofar as the reasons for the BAG's decision are not yet available, we must initially assume that this is a decision on an individual case. The Regional Labour Court (Landesarbeitsgericht, LAG) of Lower Saxony provided a considerable amount of "ammunition" in the appeal instance (dated 23 March 2021, 11 Sa 1062/20), which means that the possibility of further lawsuits cannot be ruled out. For example, the LAG Lower Saxony stated that, although the General Decree in question prohibited the business from opening to the public, it did in turn permit work without the business opening to the public. Moreover, in its case law the BAG has repeatedly ruled that a business risk is also realised in cases where the employer is not responsible for it. Ultimately, by employing the mini-jobber, the employer had an economic advantage that balanced out the business risk that had occurred.

Further consequences

The short-term consequences of the decision are foreseeable, because – and this can be assumed – the decision has been reached in express proceedings only seven months after the decision of the second instance in the middle of the government formation phase. It is therefore highly likely that there will be a legal amendment to the short-time work benefit in order to establish the protection of mini-jobbers as "demanded" by the BAG.

It also cannot be ruled out that the case will end up before the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG). The procedural parties are now already disputing in the third instance over a monthly salary of 432.00 euros. The case would certainly be suitable to clarify the legal questions concerning the doctrine of the business risk.

Also proceeding on the further assumption that quite a few companies in the retail sector already switched directly to e-commerce such as click & collect during the first lockdown, not all employers in the retail sector will be able to say that there was no work for mini-jobbers. Here, employers will bear a considerable burden of proof in corresponding lawsuits.

What is more, this decision certainly cannot be invoked by those companies that were affected by sales and turnover slumps triggered by the pandemic as opposed to a closure on grounds of a Corona-related general decree, and, as a consequence of this, did not pay wages to mini-jobbers.

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