Employee's duty to present evidence when claiming overtime
> May 2022
The Federal Labour Court (FLC) ruled in a landmark decision (4 May 2022 - 5 AZR 359/21, PM 16/2022) that employees claiming remuneration for overtime must still prove that said overtime was necessary, ordered or at least tolerated by his employer.
This principle was not changed as a result of the so-called "time clock ruling" of the European Court of Justice (ECJ) of 2019. At the time, the ECJ had required companies to introduce "an objective, reliable and accessible system of recording working time". This had led to some uncertainty in everyday practice.The FLC now clarified that this ECJ ruling only referred to health protection against exceeding maximum working hours. The ruling does not allow any conclusions to be drawn about employees' remuneration. The EU is not responsible for this. Accordingly, it cannot be concluded from the ECJ ruling that the burden of proof for remuneration of overtime changes if the employer does not use a precise working time recording system. This burden of proof on the part of the employees does not cease to apply on the grounds that the employer could have obtained the knowledge by introducing a suitable time recording system. This decision lets many employers take a deep sigh of relief.
In the case in question, the employee - a beverage delivery driver - submitted time clock receipts which were supposed to prove overtime on a larger scale. The plaintiff had demanded overtime pay amounting to more than 5,000 euros gross. He claimed that he had worked the entire recorded time. It had not been possible for him to take breaks because otherwise the delivery orders could not have been processed.
The employer disputed this. It had been ordered that breaks be taken. The plaintiff could not have managed without the breaks because he was a "heavy smoker". On the other hand, the plaintiff stated that when loading and unloading as well as transporting groceries and beverage crates, he had not had any opportunity for breaks at all. However, the plaintiff's records left open whether and how many breaks he had taken during working hours.
Because of the unchanged burden of proof, the driver would now have had to prove that he had not taken any breaks at all - and that it had been necessary to work through without break times in order to complete deliveries. He was unable to prove this, though.
A certain uncertainty nevertheless persists. How the ECJ ruling of 2019 will be implemented in Germany remains to be seen. At any rate, according to their coalition agreement, the federal government is committed to trust-based working time. This is certainly to be applauded. > Federal Labour Court (FLC), Press Release 16/22: Burden of proof in overtime compensation proceedings
> European Court of Justice (ECJ), Judgment of 14 May 2019, C-55/18 "Time Clock Ruling"
