Arti­cle ZHAW Alumni

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.