The Route Risk
In principle, it is the employees’ responsibility to get from their home to their place of work. Despite a strike, they are obliged to arrive at work on time. Employees therefore bear the so-called “route risk”.
In accordance with German law, employers are usually only obliged to continue to pay remuneration without consideration if the respective employees are unable to perform their work for a short period of time due to a personal reason for which they are not responsible. The reason for prevention must relate specifically to the employee in person. The employers’ obligation to continue remuneration in such a case may even be excluded in the employment contract entirely.
In contrast, a general impediment caused by force majeure – such as severe weather or strikes – which usually affects a large number of people at the same time does not result in an obligation for employers to continue to pay remuneration. Employees are therefore responsible for ensuring that they start work on time. Accordingly, serious and appropriate precautions must be taken to start work at the scheduled time.
Alternative Routes or Means of Transportation
Employees must therefore try to organize alternative routes or means of transport in good time. For example, employees can be expected to use non-striking means of transport wherever possible. Carpooling with other employees or car-sharing services should also be considered. If necessary, employees may have to start their way to work much earlier than usual.
Home Office
German employment law does not contain any entitlement to work from home. In principle, the following applies: If no agreement has been made and if there are no company regulations that allow employees to work from home, a mutual agreement with the respective employers is necessary in order to allow employees to work from home.
Making up for Missed Working Time
An obligation to work additional hours applies only if stipulated for in the employment contract, a works agreement or an applicable collective agreement. In general, the question of whether working hours missed due to a strike should be made up for will depend on the respective interests of both parties. In many cases, time accounts are kept for employees so that the missed working hours can be recorded as minus hours.
Pay Cuts and Warnings
If it is not possible to make up for the missed working hours for personal or organizational reasons, employees must accept a corresponding reduction in their wages. The basic rule is: No pay without work. If employees do not work, employers do not have to pay wages unless a statutory exception applies, such as continued payment of wages in the event of illness.
As an alternative to a reduction in wages, by mutual agreement, the employees’ annual leave entitlement may be reduced accordingly. However, such reduction in annual leave is only permissible to the extent that the employees’ statutory minimum annual leave is not. According to the German Federal Vacation Act, statutory minimum annual leave is four weeks. With a 5-day week, this corresponds to 20 days. This statutory minimum leave must not be reduced. Accordingly, only such vacation days employees are granted in addition to the statutory minimum leave by their employment contracts or a collective agreement may be used to make up for missed work days.
If employees are late or do not come to work at all due to insufficient effort as a result of the strike, employers may even take disciplinary measure due to the lack of work performance, e.g. by issuing a formal warning. Only in exceptional cases where it is unreasonable to expect employees to attend work no such disciplinary measures must be taken.
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