Germany: Dealing with Travel Time

In Germany, when does employee travel time count as working time?

Two legal regimes apply: (1) Germany’s own working time rules; and (2) EU rules as interpreted by the EU Court of Justice (CJEU),

A typical scenario: an employee driving colleagues to a work event (e.g. a training conference). One is driving, one is working on their laptop, and one is resting.   Who is working?

In a recent CJEU judgement relating to Spain, the determining factor was the level of management control exercised by the employer as to the detail of employees’ travel, such the travel times (departure and arrival), destination and method transport.  If the level of control was significant, the court held that the trip would form part of the employees’ duties and so would count as working time whether or not the employee was driving, working on a laptop or resting.

In contrast, the current German approach has focussed on the burdened imposed on the employee by the travel – e.g. was the employee doing the driving. Therefore, different assessments might apply to the three employees in the example.

It is likely that German courts will pay more attention to the CJEU ruling when deciding working hours questions in the future.

Action for German Employers

In light of this, if employers are closely organising and managing employee travel, they should check to ensure they are complying with the rules on working hours and rest time.  Lack of care may result in travel time not being properly treated as working time.

Particular care is needed when staff work regularly off site.  A structured policy is recommended which sets out clearly how travel is to be organised, what counts as working time, what counts as rest time, how they are both recorded and what are the remuneration rates.

The CJEU decision does not change the rules in Germany on paying for employee travel. Rates for travel time can be negotiated.