According to the Federal Labour Court (BAG): showering can count as working time subject to remuneration.

In a recent ruling by the Federal Labour Court (BAG) in April 2024, the BAG issued its first supreme court decision on the obligation to pay for personal hygiene time. The facts of the case: the plaintiff was an employee working as a container cleaner who, in the first instance, demanded remuneration from his employer for 55 minutes per working day that he would spend putting on and taking off his work clothes, showering after work and travelling between the changing room and his workplace. While the BAG mainly referred to existing case law with regard to travel and changing times, it set out its own standards for personal hygiene times. Personal hygiene times are to be regarded as working time if they are directly related to the actual activity and therefore serve exclusively to satisfy an external need. A direct connection is deemed to exist if the employer expressly orders the cleaning or if it is required by mandatory occupational health and safety regulations. For example, when working with substances that are hazardous to health.

Obligation to pay compensation even if it is unreasonable to travel home in an unclean state.

In addition, personal hygiene is part of the working time for which remuneration is payable if the employee has become so dirty during their work that they cannot reasonably be expected to put on their private clothing, leave the workplace, and travel home without first cleaning themselves. In order to assess what is reasonable, a distinction must be made according to the activity, the work clothing worn, and the degree of soiling. The Federal Labour Court differentiates between “normal” and full-body cleaning (showering). Full-body cleaning is only part of the working time subject to remuneration if, on assessment, the work would not be possible without it. Furthermore, the court emphasises that personal hygiene, which serves to remove normal dirt, such as sweat or similar, serves to satisfy private needs and is therefore does not count as working time for which remuneration is payable.

Public law and occupational health and safety regulations can be used as a guide for differentiation. As an example, the BAG cites the Technical Rules for Workplace Sanitary Facilities ASR A4.1, which specify, among other things, when a workplace requires washrooms. Nevertheless, the court emphasised that a case-by-case is always necessary, due to the many different working conditions. The benchmark here is the objective view of a reasonable employee.

What happens next?

In the appeal proceedings, the Nuremberg Regional Labour Court had estimated the time required for changing and washing in accordance with Section 287 (2) in conjunction with (1) of the German Code of Civil Procedure (ZPO) in order to decide on the amount of the claim. Since, according to the Federal Labour Court, it based its decision in part on irrelevant considerations and unproven facts, the BAG overturned the appeal ruling. The case will now be referred back to the Regional Labour Court, inter alia for a repeat of the estimate. The Nuremberg Regional Labour Court has not yet issued a decision.