Federal Labour Court on the burden of presentation and proof in overtime proceedings

This decision was eagerly awaited after the Emden Labour Court had "upset" the previous understanding of the distribution of the burden of presentation and proof in overtime proceedings with two decisions. The Federal Labour Court has now restored the old situation with its ruling of 04.05.2022 (ref. 5 AZR 359/21). The ruling lets many companies breathe a sigh of relief.  

1. the facts

The plaintiff employee was employed by a retail company as a delivery driver. The employee recorded the beginning and end of his working hours with a technical recording device. Break times were not recorded. At the end of the employment relationship, the employee had a positive working time credit of almost 350 hours. The plaintiff employee sought payment from the company for these overtime hours. He claimed that he had not been able to take any breaks. He had always worked through. The company disputed this claim.

The Emden Labour Court had upheld the claim (Case No. 2 Ca 399/18). The Lower Saxony Labour Court (Landesarbeitsgericht Niedersachsen ) changed the ruling and dismissed the action - with the exception of overtime that had already been invoiced (Case No. 5 Sa 1292/20).


2. the decision

The employee's appeal against the decision before the Federal Labour Court was unsuccessful. The Regional Labour Court had rightly dismissed the action. The requirement to explain the employer's reasons for and attribution of overtime could not be waived on the basis of the case law of the ECJ (judgment of 14 May 2019, case no. C-55/18). The ECJ had ruled on 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. The principles developed therein have no effect on the principles on the remuneration of employees. Nor do they have any effect on the principles developed in German procedural law. This applies in particular with regard to the distribution of the burden of presentation and proof in overtime proceedings.

The Regional Labour Court was therefore correct in assuming that the employee was still unable to present his case. He had not been able to sufficiently demonstrate that it had always been necessary to work through the breaks. The mere assertion in this regard was not sufficient.


3. conclusion 

The ruling is in line with the previous case law of the Federal Labour Court. According to this, the employee must explain and, if necessary, prove when he worked overtime and what he worked on. He must also show that the overtime was ordered or approved by the employer. Companies that do not introduce time recording do not have a different burden of proof in this respect.

The ruling will bring relief to many companies. Even though the LAG Lower Saxony had already largely dismissed the complaint, there was great uncertainty until the end.  


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