Continued payment of wages in the event of illness jura wissen kompakt

Illness and continued payment of wages: procedure based on an exampleTip: No desire to read? Then simply start our free online course on the family-. Inheritance law as live-repetition or as studio-repetition.

Continued payment of wages in the event of illness jura wissen kompakt

Image: "17072007169" by Rowan McLaughlin. License: CC BY 2.0

The facts of the case

Mr. K. has been with Ms. M for one week. employed. At the weekend, he pursues his favorite hobby. Riding his bike on a grand tour. Car driver overlooks him. Takes the right of way. Mr. K. Is seriously injured. He must five weeks at Hospital and then for further three weeks into the Rehab.

Mr. K. must nevertheless continue to pay bills and when a bank clerk suddenly calls him because his account is not covered, Mr. K. quite queasy. Checks it out and has to realize that he has not received a salary. Startled he calls Ms. M. who explains to him that Mr. K. would not have worked long enough for their company. He would only be entitled to continued payment of wages after four weeks. In addition, this would only apply for six weeks and not for eight weeks, which he has already been ill.

Mr. K. Consults his attorney and wants to know if he is entitled to continued pay for the 8 weeks and whether there is a claim by Ms. M. there is a claim against him.

Note: A claim under § 611 BGB does not exist, as Mr. K. did not work during the period in question.

Claim from § 3 I S.1 EntgeltFZG

Since Mr. K. was unable to work due to illness and is an employee without question, the EntgeltFZG could be applicable. In this case, it would have to be additionally examined whether he himself was at fault for this incapacity for work and whether which period of time would be eligible under EntgeltFZG.

1. Illness, incapacity and employee status

Mr. K. Is clearly an employee and was obviously ill as a result of the accident and also incapable of work under § 275 I BGB, as he was unable to fulfill his obligations under the employment contract in the period specified.

2. fault

Furthermore, it must be clarified to what extent Mr. K. is to blame for his inability to work. According to § 3 EntgeltFZG there is no obligation of the employee not to fall ill. It can be deduced from this that this is a mere obligation, i.e. a lesser duty that is not enforceable. This means that the standard of culpability pursuant to Section 276 of the German Civil Code (BGB) does not apply.

Such a A minor breach of duty only exists if, if it is a gross violation of a duty owed by the employer in his own interest acts in a manner that is to be expected. This would be the case, for example, if Mr. K. of a risky sport would have been pursued. Since cycling is not considered a risky sport, even despite the dangers in road traffic, one cannot ame fault on the part of Mr. K here. speak.

3. Period of the claim

The EntgeltFZG is therefore applicable, Now, however, there is still the question for which Period a entitlement to continued remuneration existed.

According to § 3 EntgeltFZG, the duration of continued payment of remuneration is a maximum of 6 weeks. This limitation applies per illness according to § 3 I S.1 EntgeltFZG. In addition, § 3 III EntgeltFZG states that an obligation to pay remuneration only arises after four weeks of uninterrupted existence of the employment relationship.

Mr. K. was taken ill within the four-week period for a period of 8 weeks. According to the applicable case law of the BAG, the claim for payment of wages is limited to a maximum of six weeks. Sick days are not taken into account during the waiting period. Accordingly, Mr. K. an entitlement to continued payment of remuneration for five weeks.

4. Amount of remuneration

The amount of the remuneration to be paid is determined in accordance with § 4 I EntgeltFZG. This is based on the so-called lived employment relationship, i.e. what the employee would be paid as gross wages under normal circumstances. However, more precise details cannot be derived from the facts of the case.

5. Enforceability of the claim

Last but not least, the claim must be enforceable. For this to be the case, Mr. K would have to. have fulfilled his obligation to provide evidence in accordance with § 7 EntgeltFZG. The facts of the case do not indicate otherwise, therefore there is no right of the employer to refuse performance.

Interim result: Mr. K. has a claim to continued payment of wages in the amount of the usual gross wage for five weeks.

Claim question from Ms. M. against Mr. K.

1. Tort claim

Conceivable would be Claim due to tort, however segregates § 823 BGB here from, since only the injured party himself, thus Mr. K. here Claims for damages against the accident causer could assert. A direct interference with the business operations of Ms. M. does not exist, so that § 823 II BGB in conjunction with § 229 StGB is not applicable either.

2. Cessio legis

According to § 6 I EntgeltFZG, claims of the employee for compensation for loss of earnings against a third party can be transferred to the employer if the employer had to continue to pay remuneration for the period of absence due to illness.

2.1 Claim for damages by Mr. K. against the person responsible for the accident

Mr. K. has a Claim for damages against the Cause of accident because of negligent bodily injury under §§ 823 I, II BGB and § 229 StGB.

2.2 The actual compensation

Even if Mr. K. is basically not worse off as a result of the accident, since he has no loss of pay as a result of the continued payment of wages, damage is to be affirmed. It would be inequitable if the tortfeasor were acquitted of the claim for damages simply because a third party has already compensated the injured party for this damage. So there is a so-called normative damage.

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