Payment obligation for travel time? – A new framework

For a long time, the courts' answer to the question of when travel time must be treated as working time, which needs to be paid, had been that travel time within the agreed normal working hours must generally be paid; employment contracts or collective agreements could establish differing arrangements. In constellations where the agreed working hours were exceeded, however, the answer to the question was the precise opposite, namely that the employer will be under no general obligation to pay for travel time if there is no specific contractual agreement in place. Instead, the usual handling was deemed to be agreed, as described in section 612(1) of the German Civil Code (Bürgerliches Gesetzbuch BGB). Already in its decision of 3 September 1997 (5 AZR 428/96), the German Federal Labour Court (Bundesarbeitsgericht ‑ BAG) stated that there was no general legal rule stating that travel time outside regular working hours must be remunerated. What mattered was what was usually to be expected in the circumstances. What was usually to be expected in the circumstances – and has to be remunerated - was then defined by applying what is known in German law on maximum working hours as the Beanspruchungstheorie, which originally was developed through case law to answer the question of whether travel time does with a view to the provisions regarding statutory maximum working hours qualify as working time within the definition of the German Working Hours Act (Arbeitszeitgesetz ‑ ArbZG). This meant an examination of whether the travelling was similarly demanding and exhausting as the actual work normally performed by the employee.

In cases where employees were expected, for instance, to drive a motor vehicle on the instruction of the employer, an obligation to pay such time – even if not within the agreed normal working hours - was considered to be the rule. If an employee was asked to use public transport but had not received any instructions on how to spend that time, like studying files, the demands placed on the employee were not comparable to those of the employee's normal work, so that the time was deemed to be neither working time within the meaning of the ArbZG nor in consideration of the so-called Beanspruchungstheorie was the volume not within the agreed normal working hours, working time requiring remuneration.

Exceptions from the above, however, were difficult to apply in practice because these exceptions had not been defined clearly enough. In its decision of 3 September 1997 (5 AZR 428/96), the BAG found the regular remuneration of employees with "above-average salaries" to cover two hours of travel per travelling day. The Regional Labour Court of Hamm (LAG Hamm) held (5 Sa 1665/94 of 12 January 1996) that employees can be expected to spend "a certain amount" of time travelling without compensation already "at a senior level", not only at a managing level. These rather vague statements watered down the original, relatively clear definition taken from the so-called Beanspruchungstheorie of public working time law.

Considering this, the recommendation had always been that employment contracts of employees travelling regularly should clearly stipulate in what cases and to what extent the time spent travelling must be paid. It had to be considered that what would, in theory, have been legally admissible, would in practice have resulted in employees no longer being ready to accept travel time. For once, the limits of such provisions were not set by the legal framework but by practical parameters in the form of adequate motivation of travelling employees.

Now, however, the BAG has created a completely new framework with its decision of 17 October 2018 (5 AZR 553/17), with the full judgment published this year. A brief outline of the BAG judgment of 17 October 2018 in Case No. 5 AZR 553/17 can be found in following blog-article "Time spent travelling for business trips is working time that needs to be paid". While the press release of 17 October 2018 may have still given employers hope that the decision may be based on particularities of the specific situation, such hopes were quickly dashed when the full statement of reasons was delivered.

In the above-mentioned decision, the BAG found that the employee was entitled to payment of necessary travel time, which in the case at hand resulted from the employee's secondment. The BAG specified that the promised services as referred to in section 611a(1) BGB, not only include the actual job activities but also any other activities or actions required by the employer under the synallagmatic contract, if such activity or action is directly linked to the actual job or the manner in which the job is performed. The BAG stated that if the employee had to perform the job outside the employee's normal workplace, the journey to the outside workplace formed part of the principal contractual obligations because the economic purpose of their job activities as a whole was aimed at visiting customers, either to perform services or to arrange or transact business for the employer. According to the BAG, this mandatorily included travel to and from a certain place, irrespective of whether the journey started and/or ended at the employer's premises or the employee's place of residence.

With regard to the remuneration issue, the BAG expressly rejects the application of the Beanspruchungstheorie, i.e. the examination of the extent to which the employee is occupied during a certain time, originating from public working time law. The definition under section 2(1) (1) ArbZG was found to be irrelevant in terms of any obligation to remunerate travel times. The BAG completely reverses the earlier situation and makes the payment of travel time the rule, irrespective of whether the travelling takes place within or in addition to the regular working hours.

NOTE: Necessary travel time now has to be remunerated at the rate that has been agreed for the actual job, unless another specific remuneration regime has been established under an employment contract or a collective Agreement.

The BAG does, however, allow travel time arrangements that will exclude remuneration of travel time, provided that the minimum wage to which employees are entitled under section 1(1) of the German Minimum Wage Act (Mindestlohngesetz ‑ MiLoG) is guaranteed for the entire duration of the job activities (including travel time). The BAG now in principle assumes a general statutory obligation to remunerate necessary travel time and only allows express exceptions, irrespective of whether the travel time is outside of the regular working hours. There were no such exceptions in the situation on which the court ruled. The case was referred back to the Regional Labour Court for the mere reason that the BAG had been unable to decide whether all times were necessary the claimant had, at the claimant's own request, opted not to use a direct economy class flight but an equally expensive business class flight, which meant a detour and thus more time spent travelling.

The BAG eventually established in detail that the necessary travel time mandatorily included time spent on activities related to the journey, such as times for travelling to and from the airport, check-in times and baggage retrieval times. According to the BAG, travel time does not include and the claimant's statements on this issue are very revealing the time for packing a suitcase or taking a shower, as suggested by the claimant.

In the specific case, no decision had to be taken on whether the commuting time from the residence to the regular workplace may be deducted, because this was not at issue here. The relevant considerations of the BAG show, however, that this deduction remains admissible.

In terms of the burden of proving the necessity of travel time, the BAG concludes the decision with the statement that if the employer specifies the means of transport and the itinerary, the employee meets the employee's burden of proof by providing a detailed account of the time spent meeting the specified requirements. It will then be the employer's responsibility to present the facts showing that the time claimed by the employee was not required. If the employer has left the employee a choice with regard to the means of transport and/or the itinerary, the employee will be responsible for presenting the facts leading to the necessity of the times spent.

PRACTICAL ADVICE: Due to the reversal of the principles regarding the duty to remunerate travel time so that all necessary travel time must now normally be remunerated, an arrangement on the scope and amount of such remuneration should be agreed with frequently travelling employees because it is still possible to stipulate differing rules.

PLEASE NOTE: A similar version of this article appeared in the Labor Law Magazine, 2/2019 on page 8.

If you have any questions related to this topic, please feel free to contact Dr Thomas Barthel (Lawyer, Licensed Specialist for Labour Law) and Dr Roman Parafianowicz (Lawyer, Licensed Specialist for Labour Law).



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