BAG on employer’s default of acceptance

A ruling of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, shows that if an employee is at fault for not being able to carry out his work as prescribed in the employment contract, his right to payment of wages may lapse.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: In principle, it is the employer that bears any operational risks. That means, among other things, that the employer must pay his employees even if there is no use for a given worker, e.g. due to a poor order situation. That being said, if it is the employee’s fault that he is unable to carry out the work due pursuant to his employment contract, his right to payment of wages may lapse. This was demonstrated by a judgment of the Bundesarbeitsgericht from September 28, 2016 (Az.: 5 AZR 224/16).

In the instant case, the worker was employed on a part-time basis as a cleaner. According to the employment contract, he could only be sent to work at the premises of a particular client of his employer. However, a heated dispute later ensued between the worker and the client in question, with the result that the client banned the cleaner from its premises. The latter was then no longer able to perform his work, as his employment contract prevented him from being sent to work at any other property. The employer subsequently gave notice of dismissal, both with immediate effect and, in the alternative, ordinary notice of dismissal. Notwithstanding this, the employee’s action for wrongful dismissal was successful. Due to the fact that the employer could no longer make use of the employee, it discontinued paying wages. The worker sued for continued payment of wages, arguing that the employer was in default of acceptance and that he himself was willing to carry out his work, but his employer would not accept this.

The respective labour and regional labour courts ruled in favour of the plaintiff. However, the BAG overturned the ruling on appeal, stating that the employer is not in default of acceptance if the employee is unable to perform his work. It was said to be immaterial whether the cause of the employee’s inability to perform pertains to factual circumstances, e.g. inability to work, or legal reasons. The Court went on to say that legal reasons could encompass, as in the present case, being banned from the premises. It concluded that if the misconduct can be attributed to the employee, the employer is not in default of acceptance.

Lawyers who are versed in the field of employment law can advise employers on all issues relating to the workplace.

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