Inability to get to work because public transportation failure

Question

The train drivers are about to go on strike in Germany. Again. And it may not be the last time.

Many people live 20-30 km from work and commute by train. There's no alternative to trains over such distances. Buses are either local (within a city) or connect only the biggest cities.

People who own cars can go by car, but this requires a driver's licence (and a car). People who own bicycles can go by bicycle, but this requires endurance (and a bike). All others are practically unable to get to work.

What does this mean for German employee? Is it necessary to use own vacation days (which may be out after a few such strikes)? Or are such strikes considered an extraordinary condition, such as a tornado or flood, and the absence of work for long-distance commuters will be justified and be considered as working hours?

I'm asking about how labour law regulates it, and not what alternatives people have (for example sick leave).

Answer 1

I am not a lawyer, but according to this interview by Spiegel Online with a lawyer specialized in German employment law, public transportation strike is not a valid excuse to come late to work. Employers can cut pay in the short run, and could even pursue termination if the problem repeats.

What you could do to get to work on time despite the strike:

• Find someone to drive you to work, for example a neighbor who works in the same city or a colleague who lives in or near your hometown (keep in mind that traffic will likely be heavier than usual).
• Take a cab to work
• Stay in a hotel near your workplace during the strike

The last two options are of course very expensive for you, so you could ask your company if they would cover the cost, even though they aren't required to do so. Also it might be hard to arrange them because during a public transportation strike there are likely many others in the same situation.

Should these options not be possible, you could come to an alternative agreement with your boss:

• Take vacation days
• Take unpaid vacation days, when you can afford it
• When your job and your company allows it, ask if you can work from home
• Stay home, but agree to compensate by working more hours in the following months

Answer 2

Philipp's answer already covers the practical aspects well.

To add the legal perspective:

According to German labor law, if you positively cannot work, for reasons beyond your control, then the rules are:

• The employer may cut your pay.
• They are however not allowed to require you to work extra hours (at least not more than in other circumstances).
• There may be additional consequences, up to termination. A single case of missing work (even for multiple days) because of a strike will probably not be sufficient, but if it seems likely that an employee will miss work repeatedly in the future (for example because of a difficult commute), that may be sufficient reason to terminate an employee.

This is based on Bürgerliches Gesetzbuch (BGB), § 326 Befreiung von der Gegenleistung und Rücktritt beim Ausschluss der Leistungspflicht, which is a general rule for contracts: If one side fails to fulfill a conctract for reasons beyond their control, the contract remains valid, but the compensation is adjusted accordingly.
See for example this overview article by Prof. jur. Michael H. Meub: § 10 Unverschuldete Arbeitsausfälle for a discussion.

That said, these are just the legal rules - these really only apply if you cannot find an agreement with your employer. In practice, it is usually better to negotiate with your boss/employer as soon as you become aware of the problem, as described in Philip's answer. Most reasonable bosses will know that it's neither party's fault and will try to find a solution that works for all involved.

Answer 3

A strike is not considered legally as force majeure, since it doesn't usually prevent you from getting to work, but merely makes it either difficult or very expensive. There are no trains? Take a taxi. Or ask your friend to drive you.

If you can't commute (because, indeed, nobody wants to pay $500 for a taxi and few friends want to drive you to another city at 7 AM):

• Contact your employer as soon as possible and explain why you can't commute.

• Show that you've actually tried. “Sorry, I'll stay home today because it seems that train drivers want to go to a strike.” doesn't give a good impression. On the other hand, if you've actually at the train station and there is really no way you can get to work, your employer may accept it better.

• If possible, commute, even if you'll be late. Staying at home is worse than being one or two hours late.

• Suggest alternatives. “Would you like me to work from home?” or “I'm ready to work the next Saturday” leave a good impression.

Despite this, you may still suffer from strikes. In Belgium, strikes by train personnel cause many lay offs every year. In France, the fact that I had to have one hour commute while all of the other 100 employees had their own car was problematic as well when bus drivers were on strike.

In those situations, while the official reason for lay offs is not the fact that they were unable to come to work on a given date, this is still an element which may influence an employer to get rid of an employee. In other words, if you're in good relations with your employer, there are chances that you'll find a solution together (like telecommuting). If your relations are not so good and you are not in generally perceived as an irreplaceable resource the company should keep at all costs, the impossibility to commit to work can be among the reasons which will push the employer to fire you.

Another point to note is that some employers in countries/cities where bus/train driver strikes are common will be reluctant to hire a person without a car in the first place. Requiring a driver license for a position is legal, even when you obviously don't need one (for instance a company is close to a bus stop and your job doesn't require traveling).