Business risk theory

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The operational risk theory is a legal institute developed by the labor court case law , which is intended to avoid inappropriate results when applying the employment contract performance disruption law.

In the law of obligations the principle of no performance without consideration applies . Under labor law, the employee would lose his entitlement to remuneration if he was unable to perform his work due to an operational disruption ( no wages without work ). The operational risk theory makes an exception to this principle and, in labor law , based on the so-called spherical theory developed by the Reichsgericht , focuses on whose controllable or at least responsible sphere of influence (risk sphere) the cause of the loss of work is to be attributed to. According to this, the employer regularly bears the operational risk, so that the employee retains his right to remuneration even in the event of work interruptions.

The business risk theory is a permissible judicial legal training .

Spread of risk

In labor law, operational risk is specifically defined as the risk that operations will come to a standstill through no fault of the employer or the employee (for example due to a lack of supplies or energy). In other words, it is about the question of whether and under what conditions the employer has to pay the remuneration even if the employee cannot perform the work owed without either of the two sides being responsible for this. According to the business risk theory, this risk is generally borne by the employer, so that, contrary to Section 326 of the German Civil Code, the employee's claim to remuneration does not expire.

The operational risk theory was initially not regulated by law.

Since the tram case in Kiel ruled by the Reichsgericht , the so-called spherical theory has been in effect, according to which the burden of wage payment or loss of wages must be borne by the person in whose sphere the reason for the prevention of work lies, while deliberately ignoring the rules of the BGB. In principle, the employer bears the operational risk, but in the event of an industrial dispute, the employee. Union members can receive a certain amount of compensation from the strike fund for their loss of earnings (usually 2/3 of their gross salary). In the event of labor disputes with long-distance effects, employees who are indirectly affected are entitled to short-time work allowance under certain conditions ( Section 100 SGB ​​III ).

The operational risk theory has been regulated by law since January 1, 2002 in § 615 BGB. There it says that the employee can demand the agreed remuneration from the employer for the services not performed as a result of the delay, without being obliged to make additional payments if the employer bears the risk of loss of work. According to this, the employer must continue to pay the remuneration for all internal disruptions that can be traced back to a failure of the material or personal resources of the company, but also for external circumstances affecting the operating resources that present themselves to the employer as cases of force majeure, as well as in Cessation of operations following an official order.

Justification of the operational risk theory

In order to legitimize the transfer of risk to the employer, the legislature refers to the idea of ​​the social working and operating community of entrepreneurs and employees. This idea also justifies the restriction of employee liability for official or operational activities (previously: hazardous work ).

The Federal Labor Court instead (BAG) is the Beherrschbarkeitskriterium to the fore; according to this, the employer has organizational and management power over the company and draws the income from the company's activities. In addition, the employer can absorb the costs better than the individual employee by calculating them in his business arithmetic, spreading them over his employees and, if necessary, insuring them.


The operational risk must be differentiated from the economic risk. In cases of economic risk, work performance is still possible from an operational point of view, but continuation of operation due to a lack of orders or sales is economically pointless.

The road risk must also be distinguished from the operational risk . The employee bears the risk that, for reasons for which he is not responsible, he will not be able to reach the place where he has to perform the work owed. If the employee cannot get to the place of work because of slippery ice or flooding , the operational risk theory is not applicable. As a result, the employer is relieved of his obligation to pay for work, since the employee bears the risk of lost work.

The cases in which the employer is responsible for the disruption leading to the impossibility of work are not to be included under Section 615 sentence 3 BGB. This can be assumed, for example, if the workplace is destroyed by a fire and the employer has to be blamed for culpable misconduct by the supervisory staff via Section 278 of the German Civil Code.

The case law has always been of the opinion that the principles governing the assumption of business risk by the employer are not applicable if the payment of wages would jeopardize the existence of the business. However, the BAG has never allowed this reservation to be enforced and has also limited it to cases in which not only the individual company but the entire company is at risk. Accordingly, the complete destruction of a single production facility was not enough to shift all or part of the operational risk onto the employees.

Individual cases

Recognized cases of operational risk:

  • technical malfunctions that lead to the impossibility of work performance (e.g. failure or overtaking of machines)
  • Production stop due to a lack of raw materials
  • Failure of the power supply
  • Events that have an external effect and which represent a case of force majeure for the employer (fires, natural disasters, etc.)
  • Public regulations lead to a standstill (e.g. impossibility of work due to a prescribed inventory)
  • Operating ban due to smog alarms
  • State mourning

Cases that do not represent an operational risk are general danger situations such as war, unrest, terrorist attacks or epidemics.


  • Martin Gutzeit: Allocation of the labor dispute risk between legal dogmatics and legal policy . In: Volker Rieble (Ed.): Future of industrial action, 2005
  • Reinhard Richardi / Otfried Wlotzke (eds.): Munich Handbook on Labor Law , 2 volumes, Munich 2009

Individual evidence

  1. ^ BAG, judgment of June 13, 1990, Az. 2 AZR 635/89, full text
  2. a b c d Krause. in: Erfurt Commentary on Labor Law, Munich, 4th edition 2010; § 615 Rn. 112 to 120.
  3. ^ Legal dictionary, G. Köbler, Verlag Franz Vahlen, 11th edition. 2002
  4. ^ RG, judgment of February 6, 1923, Az. III 93/22, RGZ 106, 272 ff.
  5. Th. Holbeck, E. Schwindl: Arbeitsrecht, 9th edition, Cologne, 2009
  6. fundamental: BAG, judgment of February 8, 1957, Az. 1 AZR 338/55.
  7. Consequences of labor disputes for employers affected by third parties. BDA , May 19, 2015
  8. § 100 Short-time work allowance in the event of labor disputes , Federal Employment Agency , business instructions, as of June 2013, p. 113 ff.
  9. Art. 1 No. 36 a of the Act on the Modernization of the Law of Obligations of November 26, 2001 ( Federal Law Gazette I p. 3138 )
  10. ^ LAG Düsseldorf , judgment of June 5, 2003, Az. 11 Sa 1464/02, full text .
  11. draft law of the federal government. Draft of a law to modernize the law of obligations , BT-Drs. 14/6857 of August 31, 2001, p. 47
  12. a b BAG, judgment of March 9, 1983, Az. 4 AZR 301/80, full text .
  13. Bauer / Opolony in NJW 2002, 3503, 3507th
  14. BAG, judgment of December 17, 1978, Az. 5 AZR 149/68, full text .
  15. ^ BAG, judgment of September 28, 1972, Az. 2 AZR 506/71.
  16. ^ BAG, judgment of December 7, 1962, Az. 1 AZR 134/61.
  17. ^ Richardi in NJW 1987, 1231, 1235.
  18. BAG AP No. 15 to § 615 - operational risk