Disruptions in travel – such as strikes, bad weather, technical failures, or short-term closures – can lead to employees not being able to perform their duties on time. The decisive factor in determining whether remuneration can still be claimed is the reason for the non-performance and in whose sphere of risk the cause lies. In labor law, cases are distinguished between situations where the employer bears the so-called operational risk and situations where the responsibility is assigned to the personal sphere of the employee.
Work performance as a prerequisite for wage entitlement
As a general rule: The entitlement to wages requires the performance of the owed work. If the work is not performed, the entitlement to wages usually lapses. Exceptions may arise particularly if the employer is in default of acceptance of the work or if a statutory exemption orders remuneration despite the failure to perform work.
Distinction: Performance disruption or default of acceptance
If an employee does not reach the workplace, it is often not a situation caused by the employer, but rather an obstacle arising in the employee’s personal sphere. It can be different if the employer cannot or does not want to accept the work performance, even though the employee is fit for work. In such cases, a wage claim due to default of acceptance may be considered. An examination of the specific circumstances is always necessary for classification.
Travel risk: Delays on the commute
Legally, the journey to work is generally assigned to the personal responsibility of the employee. If there are delays or cancellations on the way to work, this typically relates to the so-called travel risk. As a result, delays or failure to appear at work generally do not lead to an obligation for the employer to pay wages for the time missed.
Travel chaos as a typical case of personal risk
Travel chaos in public transportation – such as canceled trains, overloaded routes, short-term detours, or similar disruptions – can prevent employees from reaching their workplace on time. In labor law, this is regularly assessed as belonging to travel risk. The employer is then generally not obliged to pay remuneration for the time during which no work was performed.
Reasonableness and personal responsibility during commuting
Employees are expected to organize their commute such that they can start work on time. This typically includes an adequate time buffer. Whether and to what extent precautionary measures are reasonable depends on the circumstances of the individual case, such as distance, transport connections, and known risks of disruption. However, labor law generally remains that the risk of commuting is not assigned to the employer.
Exceptions: Remuneration despite work absence
Besides the principle of “no work, no pay,” labor law recognizes situations in which wages may be due despite missed work. The decisive factors are legal regulations and the assignment of risk.
Default of acceptance and operational causes
If an employee can work and properly offers their service, but the employer cannot accept it for operational reasons (e.g., due to internal disruptions), a wage obligation may exist. These situations concern operational risk. Delays or failures due to travel on the way to work, however, typically do not fall under this.
Temporary personal hindrance
In certain cases, the law requires payment for temporary personal hindrance, provided the conditions are met and no effective contrary regulations have been made. Whether travel disruptions fall under this depends on the individual circumstances; typical travel disruptions on the commute are often not classified as payable hindrances.
Special features of mobile work and business travel
Travel chaos can affect not only the daily commute but also travel to out-of-town appointments or returns from business trips. The legal classification depends on whether the travel time is attributable to the employer under labor law and which agreements apply in the employment relationship.
Business trips and return travel: Attribution and remuneration
For employer-initiated trips, the risk distribution may differ from regular commutes. What counts as work time and whether a pay obligation arises in the event of delays depends on the contractual design, applicable collective bargaining agreements, and specific travel organization circumstances. General statements are therefore only possible to a limited extent.
Mobile work and accessibility
As far as work can be performed independently of location, additional demarcation questions arise, such as whether it would have been possible to perform the work on time despite travel disruption or whether company guidelines require work at a specific location. The contractual framework and actual circumstances are also decisive here.
Classification and significance for practice
Traffic disruptions can have significant impacts on work performance. For remuneration, the deciding factor is whether the non-performance of work is attributable to the employee’s responsibility (especially travel risk) or the employer (especially operational risk/default of acceptance). In labor law assessment, the focus is regularly on the specific situation, existing employment regulations, and the actual processes.
Contact point for legal inquiries
The legal assessment of work failures due to travel disruptions regularly depends on the circumstances of the individual case and the respective contractual basis. If clarification is needed – for example on risk allocation, potential pay consequences, or relevant employment contract regulations – aLegal advice in labor law by MTR Legal Attorneys can enable a proper classification of the situation.
