Should showering at work be remunerated as working time?

In principle, Section 611a (2) of the German Civil Code (Bürgerliches Gesetzbuch – BGB) stipulates that employees may only be remunerated for the time they spend performing the contractually owed work. Work performance includes not only the specific activity itself, but also ‘any other activity or measure requested by the employer in the synallagma that is directly related to the specific activity or the manner in which it is performed’. The decisive factor is that the activity serves the fulfilment of an external need.

In its recently published decision dated April 23, 2024 (5 AZR 212/23), the Federal Labor Court (Bundesarbeitsgericht – BAG) addressed the question of under what circumstances time spent changing clothes and showering must be classified as external use and thus as working time subject to remuneration.

Decision

The plaintiff had claimed that the 55 minutes per day he spent going to the locker room, putting on and taking off protective clothing, and doing personal hygiene after work should be remunerated as working time. As a mechanic, his job consisted of sanding, cleaning and repainting the containers, which meant he regularly got dirty. For this work, the defendant provided him with special protective clothing, which remained in the company even after the end of the shift.

In the first instance, the Nuremberg Labor Court (LAG Nuremberg) had awarded the plaintiff the compensation claims. Time spent changing clothes and showering is for the benefit of others, as it is based on the employer’s instruction to wear work clothes during working hours and is therefore compensable.

The objection of voluntary personal hygiene is misguided. This is because the plaintiff is exposed to dirt during working hours and it is neither possible nor reasonable for him to change into his personal clothes or keep his soiled work clothes on in order to go home without first cleaning his body. However, the critical factor is the degree of contamination of the employee, which must exceed the “normal” contamination of the body due to the specific activity.

The LAG Nuremberg recognized only 20 minutes per day as necessary for changing and showering.

This time is based on the court’s own estimate in accordance with § 287 section 2 in conjunction with § 287 section 1 of the Code of Civil Procedure (Zivilprozessordnung – ZPO). A time of 5 minutes for changing and 10 minutes for showering is appropriate and sufficient, even if all clothes have to be changed and heavy dirt has to be cleaned.

On appeal, the LAG Nuremberg awarded the plaintiff additional amounts and thus greater time shares for changing and showering. To this end, the chamber of the Higher Labor Court made an evaluation of the showering times and carried out a “self-experiment” on the changing times in the hearing room, where the parties and the public were excluded.

However, the employer’s appeal to the BAG, which has now been decided, was largely successful and resulted in the appellate court’s decision being overturned and referred back to the LAG. In particular, the court’s evaluation of the duration of the shower and the chairman’s “self-experiment” in the absence of the parties and the public were inadmissible. The factual findings made so far are not sufficient to make such a decision, according to the BAG. Moreover, some of them were contradictory. In this context, the LAG Nuremberg must make new or additional factual findings.

Follow-up questions

According to the most recent decision, personal hygiene time is considered working time if it is directly related to the actual activity itself or the manner in which it is performed, and therefore serves solely to satisfy an external need. This is presumed to be the case if showering or personal hygiene is specifically required by the employer, or if mandatory health and safety regulations require it, such as in the healthcare sector (e.g., laboratory work) or in parts of the food industry.

However, a duty to pay compensation may also be presumed if employees become sufficiently dirty in the course of their work to make it unreasonable to expect them to change into their private clothes, leave the premises and go home – whether by public transport or their own vehicle – without first cleaning up at the end of their shift.

The key factor is the degree of soiling, which must go beyond the “usual soiling” caused by the performance of the work under the employment contract. Changing clothes and showering at work, which is done voluntarily and out of personal preference, remains a private matter and should not be compensated, even if the employer provides a shower facility.

Practical advice

The ongoing issue of “changing times” or “shower times” as remunerationable working time is likely to receive renewed attention as a result of the recent decision of the BAG. The BAG has provided additional clarity here. This is very welcome, especially from the employer’s perspective.

Photo: shutterstock / Quality Stock Arts