The coronavirus and its effects on employment law raise numerous questions, some of which have not been judged by the courts. In the first part of the new section “Legal Tips for Alumni”, lawyer Harry Nötzli looks at the employer’s obligation to continue paying wages in the event of company closures and the mandating of holidays at short notice.
Employer’s obligation to continue to pay wages in the event of closure of the company
In times of crisis like this, the employer has the option of applying for short-time work. However, the employee can also refuse short-time work, because in principle he does not have to accept a reduction in his wage. However, the question then is: Is the employer obliged to pay the full wage even if the employee is no longer working due to the closure of the company? The academic opinions on this are controversial.
This is because wages are only owed if work is also performed. However, there are exceptions: For example, the employee is entitled to wages even if he is unable to work due to illness or accident. The same applies if the employer is in so-called default of acceptance. If the employee is unable to perform the work “due to the employer’s fault” or if the employer is “in default of accepting the work for other reasons”, the employee is entitled to full wages — the operational risk and the economic risk are, after all, part of the employer’s area of risk. Although caused by third parties or due to the market, the employer must then also pay the employee the contractually owed wage if the employee refuses short-time work and cannot be employed.
The legal situation is less clear, however, in the case of happenstance and force majeure such as a worldwide pandemic. There are experts who qualify plant closures as force majeure, which belongs to the area of risk of neither the employee nor the employer. According to this view, both parties are exempt from their obligation to perform. Thus, if a worker refuses short-time work and cannot be employed as a result of a plant closure, he is also not entitled to wages. For other experts, on the other hand, work absences as a result of force majeure are also part of the employer’s risk. As a consequence, an employee who refuses short-time work but cannot be employed is nevertheless entitled to his wages. The employer is in default of acceptance.
Mandating of use of holiday entitlement by the employer
In principle, the employer is entitled to determine the timing of holidays. However, he must take into account the employee’s wishes to the extent that this is compatible with the interests of the company. The employee must also be given sufficient time to plan the holiday. According to case law, holidays must therefore be announced at least three months in advance. However, this notice period of three months does not apply absolutely — even without a pandemic. For example, in the case of an urgent and unforeseen operational need, the employee must accept a change in the date of the holiday, in exceptional cases even a recall from the holiday. At any rate, in such a case he is entitled to compensation from the employer for the damage incurred.
Many employers sent their workers on short-term holiday after the plant closures during the pandemic in order to delay short-time work and prevent workers from taking their holidays when the economic situation picked up again. The three-month notice period was not respected and often still is not, thus significantly affecting holiday planning and scheduling. The decisive factor, however, is whether the purpose of the holidays — the employee’s recreation — is thwarted, which is usually not the case. Moreover, according to common opinion, the employee has an increased duty of loyalty towards the employer in times of crisis. The unilateral mandating of short-term holidays should therefore be permissible under these circumstances — but it must not become the rule.