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Time spent travelling for business trips is working time that needs to be paid

Federal Labour Court (Bundesargeitsgericht, BAG) judgment of 17 October 2018 in Case No. 5 AZR 553/17

The BAG has decided: travelling time is working time and needs to be remunerated when it is “necessary” in order to reach a location outside of the workplace. When assessing the necessity, the question is whether the employer has specified the means of transport and the itinerary. Where this is the case, the time will be considered necessary. Where, however, the employer leaves it up to the employee to choose the mode of transport and/or itinerary, the travelling time that must be remunerated as working time will be the time that would accrue if the least expensive mode of transport was taken. For a flight, the time of a flight in economy class applies.

Facts of the case

A construction supervisor supervised the work at numerous sites in various countries. He was also, for example, sent to supervise a site in China for approximately two months. Instead of a quick, direct flight in economy class, the employer booked a return trip in business class with a stopover in Dubai at the request of the employee.

The employer then paid the employee the contractually agreed fee for eight hours per day in each direction as travelling time. The construction supervisor brought an action for payment of a further 37 hours of working time, claiming that the whole travelling time from his home to the construction site and back should be paid as working time.

The Judgment

The BAG ruled partly in the employee’s favour and held that travel to and from an external workplace should generally be reimbursed as working time. The employee took the trip solely for the interests of the employer and should therefore be considered as business travel. This means that travelling time outside of regular working hours is to be paid as working time, where the travel is considered necessary. The employee shall have both the burden of proof and burden of producing evidence.

If the employer does not make any stipulations with respect to the mode of transport and/or itinerary, the employee is obliged to choose the least expensive mode of transport or least expensive itinerary from all reasonable forms of transport and itineraries. For a flight, this will generally be the time that applies in the case of a direct flight in economy class.

Practical consequences

Travelling time impacts on two different issues, which should be dealt with completely independently: on the one hand, there is the issue of how travelling time should be viewed with respect to the law on working time and the provisions designed to protect employees, and on the other hand there is the question of whether travelling time should be remunerated. The decision on the BAG in this case dealt only with the latter issue.

Until now, the BAG has taken the view that there is no general rule on when time spent travelling outside of regular working time should be remunerated. Indeed, in each case it should be examined, whether or not remuneration was expected. This changes in the case of business trips or secondment to another country, where, in line with the current judgment, time spent undertaking necessary travel outside of the regular working time needs to be reimbursed.

If one continues this line of thinking, when official business requires an employee to take a 12 hour direct flight, the employee has the right to be paid for twelve and not just eight hours.

The impact of this judgment on purely domestic situations is not yet clear. While the case in question related to the employee’s secondment to a foreign country, the decision could still be applied to business trips and travelling time for domestic travel. The argument applied by the BAG in the case, that travel to an external workplace is necessary and therefore should be reimbursed at the contractually agreed rate, is not limited to travel to or from a foreign country. After all, even in purely domestic cases, travel to and from the customer’s premises in order to provide services, generate business or conclude deals on behalf of the employer still takes time. If such travel occurs outside of regular working hours, there is a lot to be said in favour of remunerating this time as well.

If you have any questions related to this topic, please feel free to contact Dr Michaela Felisiak (Lawyer, LL.M.).

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