BAG: Showering can be working time

Can showering be working time? The Federal Labor Court had to decide on this question (BAG, judgment of April 23, 2024 – 5 AZR 212/23). The answer is: Body cleansing is part of working time if employees get so dirty during their work that they cannot otherwise be expected to put on their private clothes and walk home. Whether these conditions are met, however, depends on the individual case. In the case decided here, the plaintiff was employed as a container mechanic. His work included sanding down rusty and damaged areas and painting work. The employer did provide him with protective clothing. Nevertheless, the employee often got so dirty at work that he first washed or showered in the changing rooms provided by the employer before putting on his private clothes and going home. These times were not remunerated by the employer.

Showering can count as working time, as can changing and travel times within the company

The time required to put on and take off work clothes and the associated travel time between the changing room and the workplace has already been classified as working time in previous case law. This applies in particular if the work clothing is prescribed by the employer and is only to be worn in the company. The BAG is now following these principles. According to this, body cleaning times can also constitute working time subject to remuneration if they are directly related to the actual activity or the manner in which it is performed and therefore serve exclusively to satisfy an external need. This is undoubtedly the case if the employer expressly orders personal cleaning or if mandatory occupational health and safety regulations require it. However, time spent cleaning the body is also part of the working time subject to remuneration if the employee becomes so dirty during the performance of their work that they cannot reasonably be expected to put on their private clothing, leave the company and go home without first cleaning their body. This applies regardless of whether the employee uses local public transport or their own car. However, the court emphasized that the soiling must go beyond “normal soiling”. Sweat and body odor generated during the day were not sufficient in the opinion of the BAG.

Employers can make company regulations for personal cleaning times

The BAG decision initially confirms the previous case law on changing and travel times. Whether personal cleaning times can also be paid working time had not yet been decided by the highest court. The BAG has now provided clarity here. However, whether and for which activities the obligation to pay remuneration actually applies in individual cases depends on the specific circumstances. One thing is certain: The soiling must be severe and go beyond the usual soiling, sweat and body odor of the day. It should also be clear that only the minimum time required to clean the body can be counted as working time. Employees will still have to carry out special cleaning or personal hygiene rituals in their free time. Employers should keep an eye on the further development of this case law and, depending on the industry, make their own contractual or collective regulations as to when cleaning times count as working time and how they are remunerated. According to the current decision of the Federal Labor Court, it is still possible to provide for lower remuneration for changing, commuting and personal cleaning times than for the original work activity or to define appropriate flat rates. Appropriate consideration should also be given in duty rosters and shift schedules.