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Employers only have to remunerate mandatory or approved overtime

Overtime is only paid out if the employer is aware of the additional work that has been performed. In cases of doubt, the employee has to be able to provide proof for every single hour. A case that was recently decided before the Federal Labour Court (Bundesarbeitsgericht, BAG) demonstrates that this burden of presentation and of proof could lead to difficulties.

The case on which the BAG decided, in its ruling of 4.5.2022 (case reference: 5 AZR 359/21) concerned an employee who worked as a delivery driver. He used a time recording device to log his working period, although only the beginning and the end of his daily working period; his break periods were however not recorded. Upon the termination of his employment the report from the time recorder showed 348 plus hours. Therefore, the driver brought a claim for €5,000 as overtime pay. He argued that he had worked during the entire recorded time period. It had not been possible to take breaks because otherwise he would not have been able to process all the delivery orders.

Outcome: The BAG took a different view. According to the court, the ECJ ruling on an employer’s obligation to record work time had not resulted in any changes to the burden of presentation and of proof. According to the established case law of the ECJ, the aim is the protection of the safety and health of employees – and not their remuneration. The obligation to measure the daily work time, which has its basis in EU law, thus has no effect on the established principles relating to the allocation of the burden of presentation and of proof in the overtime remuneration process. As the employee was not able to offer this proof, his claim had no prospect of success. 

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