Is travel time working time? A German court says it may be for working abroad

A recent ruling by a German court tackled that contentious question of labour law: when employees are compelled to travel abroad, should they be paid for travel time?

The ruling was based on the fact that if an employee is under a contract based on German law, he is under the jurisdiction of German labour law even if he is working outside of Germany. So when applying this rule to the treatment of travel time as working time, Germany's Federal Labour Court (BAG) decided in its judgment of 17 October 2018 (5 AZR 553/17) that in the context of business travels, travel times may be subject to remuneration.

Under German law, it has long been established that business travel falling within the regular working hours are to be remunerated like regular work. This means that if an employee makes an external customer appointment during his or her normal working hours or attends an external training event at the employer's instruction, not only the duration of the appointment or event, but also the travelling time is to be remunerated as working time.

The treatment of business travel outside normal working hours, however, has not been clearly defined.

In the case mentioned above, an employee spent two days travelling to and from a construction site in China. The particularly long travel time with a stopover in Dubai resulted from the employee's wish to fly business class, while a direct flight was only available in economy class.

The employer had paid only the regular working time of eight hours per travel day, arguing that only traveling times within the regular working hours of an employee must be remunerated. The employee demanded overtime payment for all the time spent on travel, including the stopover.

The BAG found that the trip was exclusively in the interest of the employer and should therefore be considered working time: even those parts of it that took place outside regular working hours.

The court, however, limited the employer's payment obligation to "required" travel time, which meant that he was not responsible for paying additional travel time beyond the easiest and fastest connection, which in this case was available but not taken.

Notwithstanding the fact that the grounds of the judgment have not yet been made public, this ruling is likely to set a precedent. Hence, in the future employers should expect that its staff may demand overtime payments for longer trips abroad. If multiple connections are available, the ruling on required travel time makes it worthwhile to calculate the actual duration required to make a given trip.

To avoid remunerating travel time beyond the payment of a regular salary, employers may want to consider including a provision about this in an employee's contract. According to the favourability principle, however, which governs German labour law and states that of several rules of applicable law in the individual case the more favourable is to be applied, such a provision would only be valid if there is no collective or company agreement granting remuneration of necessary or even full travel time.

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