BAG: No facilitation of evidence for employees in overtime compensation cases

In its decision of 4 May 2022 – 5 AZR 359/21, the Federal Labour Court (Bundesarbeitsgericht – BAG) finally clarified a controversial legal issue regarding overtime remuneration and the associated burden of proof. According to the BAG, the employee still has an increased burden of explanation and proof in overtime compensation proceedings. Contrary to the much-discussed decision of the Emden Labour Court (ArbG) of 09.11.2020 – 2 Ca 399/18, the mere presentation of circumstantial evidence by the employee is not sufficient.

The Federal Labour Court’s decision was based on the following case:

The employee was employed as a delivery driver by his employer, who runs a retail business. The employer recorded the employee’s working time by using technical time recording, whereby only the beginning and end of the daily working time were recorded, but not the break times. At the end of the employment relationship, the evaluation of the time records showed a positive balance of 348 hours in favour of the employee. In his claim, the employee then demanded overtime pay amounting to € 5,222.67 gross. According to his description, he had worked the entire recorded time and had not taken the breaks. It was simply not possible for him to take the prescribed breaks, as otherwise the delivery orders could not have been processed.

The employer countered the employee’s allegations and denied them throughout.

In the first instance, the Emden Labour Court had caused quite a stir and discussion nationwide with its decision, as it had upheld the employee’s claim and, contrary to previous case law, took the following standpoint:

It assumed that the judgment of the European Court of Justice (ECJ) of 14 May 2019, Case C-55/18 [CCOO], had modified the burden of proof in overtime proceedings.

In this judgment, the ECJ clarified that employers are obliged under European law to establish an objective, accessible and reliable system for recording working time.

If the employer does not comply with this obligation to record and check the recording of working time in the manner described above, this failure to record – in the opinion of the ArbG Emden – now constitutes a thwarting of evidence by the employer. This was associated with a considerable simplification of the evidence for the employee, so that it should be sufficient if the employee presented circumstantial evidence and, for example, submitted printouts of a recorded time sheet.

The Lower Labour Court (LAG) of Lower Saxony dismissed the claim in the next instance – with the exception of overtime already paid by the employer. Subsequently, the BAG confirmed the decision of the Lower Saxony Regional Labour Court in the appeal and expressly decided against the legal opinion of the Emden Labour Court.

In the opinion of the BAG, there was still no deviation from the requirement for the employee to prove that the employer had caused and attributed the overtime. The decision of the ECJ only concerned the interpretation and application of the Working Time Directive 2003/88 EC and Article 31 of the Charter of Fundamental Rights of the European Union.

A transfer of these principles to the question of whether and when overtime subject to remuneration had arisen was not possible. According to the BAG’s decision, the obligation to record working time, which is based on European law, therefore has no effect on the existing principles on the distribution of the burden of proof and presentation in overtime remuneration proceedings.

In short: In a much-discussed decision, the ArbG Emden, referring to an inapplicable ECJ ruling, called into question the previous principles on overtime remuneration and caused some uncertainty in the subsequent labour court proceedings nationwide. Naturally, this case law was raised by employee representatives in every subsequent overtime case. Even the ruling of the Lower Saxony Regional Labour Court could not contribute to a final clarification.

For this reason, the BAG’s decision is to be welcomed, especially from the employer’s point of view. Although there were initially justified doubts about the decision of the ArbG Emden, which was then also not upheld in the appeal instance, any residual risks could only be eliminated by the BAG’s ruling.

Therefore, it remains the case that the employee has to show in the first step that he or she has performed work in excess of the normal working hours or that he or she was prepared to do so on the employer’s instructions. In addition, in the second step, the employee must show that the employer expressly or impliedly ordered, tolerated or subsequently approved the overtime worked. These requirements of presentation and proof cannot be met by many employees in labour court proceedings.

For this reason, from the employer’s point of view, it would always have to be checked beforehand whether the overtime claimed by the employee was actually worked and must be paid. Accordingly, an unconditional recognition of overtime is not advisable.

Do you have further questions on these or other topics? The experts from our Labour Law department will be happy to support you with solutions tailored to your individual needs.