Confirmation of previous case law on working time that requires remuneration
The courts have already had to grapple with the issue of the obligation to pay remuneration for such preparatory and concluding activities in a number of their rulings. In their decisions, the judges have linked the employer’s obligation to pay remuneration under Section 611(1) of the Civil Code (Bürgerliches Gesetzbuch, BGB) to the performance of the promised services. According to case law, these promised services include not only the actual job but also every other activity or measure required by the employer that is directly linked to the actual job or the manner and means by which it is performed. Therefore, according to the legal rulings hitherto by the Federal Labour Court (Bundesarbeitsgericht, BAG), preparatory and concluding activities likewise have to be classified as working time that requires remuneration if these activities are performed within the framework of the right to issue instructions under employment law.
Against this background, in its ruling of 19.9.2012 (case reference: 5 AZR 678/11) the BAG had already decided that time spent changing clothes is included in the work that employees have undertaken to perform if the wearing of a specific type of clothing is stipulated in the contract by the employer and employees have to change their clothes in the workplace. In such a case, changing clothes primarily fulfils the needs of a third party and not your own needs since the change of clothes happens at the employer’s instruction. In the ruling it was also established that, as a logical consequence, the time spent by the employee to get from the changing area to the workplace would then also have to be regarded as working time that requires remuneration. This was only recently confirmed once again by the BAG in its ruling of 31.3.2021 (case reference: 5 AZR 148/20; 5 AZR 292/20).
While the cited rulings are merely decisions in individual cases, nevertheless, it does not seem unlikely that other activities should likewise be viewed as working times that require remuneration. The remaining legal uncertainty will be borne primarily by employers who, in practice, will have to grapple with the consequences of working time that is not remunerated.
Consequences in the case of misjudgement
In doing so, the potential consequences for employers should on no account be disregarded. For example, the obligation to pay remuneration poses problems, in particular, in terms of social security legislation as the contribution liability is linked to the agreed remuneration. If preparatory and concluding activities constitute working time that requires remuneration then, normally, there is a risk that, besides having to subsequently pay the contributions, the competent authorities will also assume that an offence has been committed.
Recommendation: Employers can help to prevent these problems by making individual contractual arrangements with their employees. Generally, it is possible to make a separate remuneration rule for an activity other than the actual job, or this obligation to pay remuneration can be completely waived via a provision in the employment contract or a collective agreement.