Update Employment Law November 2021
Compensation of negative hours on the working time account in the event of terminating the employment relationship
LAG Nuremberg, judgment dated 19.05.2021 - 4 Sa 423/20
If there are still negative hours on the employee's working time account when he leaves, the employer may only reduce or reclaim remuneration accordingly if this has been agreed. In addition, the employee must actually have the possibility to compensate for the negative hours before leaving the company.
In the context of a dismissal protection lawsuit, the employer and the employee concluded a court settlement. In this settlement, the parties agreed on a termination of the employment relationship due to ordinary termination as well as a release of the employee from work until the termination of the employment relationship. Vacation entitlements and any time credit should be contributed. The parties also clarified in the settlement that there were no further financial claims.
Following the conclusion of the court settlement, the parties now disputed any compensation claims of the employer due to negative hours on the employee's working time account.
The LAG Nuremberg denied a claim for compensation by the employer.
According to the LAG Nuremberg, a claim to compensation for negative hours on the working time account when the employee leaves the company requires a corresponding agreement. This did not exist in the present case.
Furthermore, the employer is only entitled to compensate for negative hours if the employee actually had the possibility to compensate for the negative hours before leaving the company. This was also not the case here. Due to the employee's leave of absence, it was not possible to compensate the negative hours until the expiry of the notice period.
In addition, the agreement in the settlement that vacation entitlements and any time credit are contributed should be interpreted to the effect that there should no longer be any further dispute about the amount of the working time account as a whole.
Finally, the LAG Nuremberg also considered the employer's claim to be non-existent because the claim was covered by the general compensation clause.
Employers should provide explicit regulations for any settlement of balances on the working time account, both in the agreement on working time accounts and in termination agreements and court settlements upon termination of the employment relationship. In particular, the balances should be reviewed carefully before concluding a settlement.
In principle, however, employers are recommended to keep negative hours on the working time account as low as possible. An employee must be given the possibility to settle negative balances before terminatingthe employment relationship. Otherwise, even if there is a contractual agreement on how to deal with negative balances, it is not possible to compensate for the negative hours.