Travel and changing times on airport premises are not remunerated working time

LAG Hessen, judgment of 31st January 2025 - 10 SLa 564/24

In its ruling of 31st January 2025, the Hessen Regional Labour Court clarified in response to an appeal filed by an employee working at the airport that travel times and changing times on the airport premises do not constitute working time subject to remuneration in the case at hand. The working time subject to remuneration only begins when the employee actually starts work at the specific workplace, not when he / she enters the company premises or the security area. In the case at hand, the travel and changing times are not working time subject to remuneration, as they are not exclusively for the benefit of third parties and changing does not necessarily have to take place at the company.

A. Facts of the case

The defendant is the operator of an airport. The plaintiff is employed by the defendant as a driver in the vehicle pool at the airport. The parties are in dispute as to whether travel times (in particular the time from passing a checkpoint on the airport premises to the working time recording terminal in building 414 and the return journey) and changing times are to be regarded as working time subject to remuneration.

The plaintiff works in shifts based on a personal annual duty roster and is remunerated in accordance with the TVöD-F (VKA). The parties' employment contract and the TVöD-F (VKA) do not contain any provisions on the obligation to pay remuneration for times between entering the defendant's premises and passing through the defendant's working time recording system (such as travel times and changing times). However, the defendant has a company agreement "Dress Code", which contains the provision "Work clothing may also be worn on the way to and from the workplace but should then be adapted to the wearing regulations" in an annex. The defendant leaves it up to its employees to decide whether they put on their work clothes (consisting of shirt, trousers, fleece troyer, rain jacket and safety shoes) at home or change on the company premises.

The plaintiff's workplace is located in the security area of the airport. In order to reach it, he must pass through a checkpoint where security checks are carried out (personal, ID and possibly bag checks). These checks are based on EU regulations (Regulation No. 2320/2002 and Regulation No. 1138/2004) and the Aviation Security Act (§ 8 LuftSiG). After passing through the checkpoint, the plaintiff must wear a yellow high-visibility vest with his name printed on it and take a shuttle bus provided by the employer to Building 414. There he can change in a changing room and must then record his working time at the time recording terminal. The defendant leaves it up to the employees to decide whether they put on their work clothes at home or at work. The defendant has a company agreement on "Access to security areas", which contains the following regulation in extracts: "Checks are generally carried out outside working hours, unless they are required after starting work as part of the company's activities (e.g. for driving activities). If delays of considerable duration occur within the meaning of Section 2 and working time is missed as a result, the supervisor may decide on any payment for the missed working time after approval by the HR department." When passing the checkpoint, the plaintiff is obliged to wear a yellow high-visibility vest with the defendant's name printed on it based on the company agreement "Traffic Regulations" in force at the defendant.

The defendant sets a flat rate of five minutes for changing clothes and allows employees to finish work ten minutes before the end of their shift to get changed.

The plaintiff seeks compensation for the travel time between the checkpoint and the time recording terminal as well as the changing times. The defendant rejects this and does not consider the working time subject to remuneration to have begun until the time recording system is activated.

The Frankfurt am Main Labour Court dismissed the action (see judgment of 8th February 2024 - 26 Ca 5906/23). The plaintiff appealed against the first instance ruling.

B. Reasons for the decision of the Higher Labour Court of Hessen

The Hessen Regional Labour Court dismissed the plaintiff's appeal and confirmed the decision of the Frankfurt am Main Labour Court.

1. travel times as working time not subject to remuneration

According to the case law of the Federal Labour Court, work performed in the service of another party within the meaning of Section 611a (1) BGB includes not only the actual activity, but also any other activity or measure requested by the employer in the synallagma that is directly related to the actual activity or the way it is performed. The employer promises remuneration for all services that it demands from the employee based on his right to issue instructions under the employment contract. "Work" within the meaning of these provisions is therefore any activity that as such serves to satisfy another person's needs (see BAG judgment of 23rd April 2024 - 5 AZR 212/23, NZA 2024, 1504).

Accordingly, the commute to and from work does not generally constitute an activity for the benefit of others and is therefore not to be remunerated in accordance with Section 611a (2) BGB. Rather, it is an activity that is part of private life and is not performed in the sole interest of the employer. The work does not begin when the employee enters the company premises, but only when the employee actually starts work as intended at the specific workplace. Even if the company premises - as in the case of an airport - are very large and the employee must follow various instructions from the employer on the way to his workplace (e.g. passing checkpoints, use of shuttle buses), this does not change the legal assessment. In particular, the company agreement "Access to security areas" in force at the defendant contains the regulation that control procedures are generally carried out outside of working hours. Moreover, the security checks when entering the security area do not serve to specify a work obligation, but to fulfil public law security requirements from the EU regulations (Regulation No. 2320/2002 and Regulation No. 1138/2004) and from Section 8 LuftSiG. Tolerating the checks does not constitute work performed for the benefit of others but serves the public interest in the safety of air traffic. Although the use of the shuttle service provided by the employer is de facto necessary, this also does not constitute an obligation to pay remuneration, as the employer generally has no interest in delaying the journey to work and the organization of the shuttle system is an ancillary service as part of the security requirements. The defendant therefore ultimately provides the shuttle service as part of its responsibility to maintain the order and safety of air traffic at the airport it operates and the employees - namely the plaintiff - also benefit from this shuttle service.

2. changing times as non-remunerated working time

According to the case law of the Federal Labour Court, putting on and taking off work clothes is only considered to be working time subject to remuneration if the employer prescribes changing clothes in the company and the work clothes may not be worn on the way to work or if the work clothes are particularly conspicuous. In this case, changing clothes is an exclusively external activity and the employer subsequently owes remuneration for the time spent by the employee for this in the company (see BAG judgment of 23rd April 2024 - 5 AZR 212/23, NZA-RR 2024, 522). In the present case, the defendant's employees are free to put on their work clothes at home or at work. The changing facilities at the company are merely an option. Therefore, changing clothes, even if it is done at the company, is not working time subject to remuneration. The journey to the changing room is also not subject to remuneration, as changing does not necessarily have to take place at the company. Putting on the mandatory high-visibility vest with the employer's imprint when entering the security area is a negligible activity, as it only takes about five seconds and therefore does not constitute working time subject to remuneration. In addition, this instruction by the defendant employer in turn only serves to ensure operational safety and maintain public order when entering the security-relevant area.

3. no deviating collective or contractual regulations

Neither the employment contract nor the TVöD-F contain provisions that would justify a different assessment. The relevant company agreements expressly stipulate that inspection procedures are generally carried out outside of working hours.

C. Conclusion

With this decision, the Hessen Regional Labour Court follows the case law of the Federal Labour Court, according to which working time begins only when work is actually started at the specific workplace and not when the employee enters the company premises. The journey to and from work does not in principle constitute an external activity and is therefore not to be remunerated. According to this ruling, nothing else applies in the case of particularly large, extensive companies, such as an airport. Changing times only constitute compensable working time if the employer prescribes changing in the company and the work clothes may not be worn on the way to work or if the work clothes are particularly conspicuous. Since in the present case changing clothes at work was not mandatory, but merely an option, the question of the conspicuousness of the work clothes was no longer relevant in the opinion of the Higher Labour Court of Hessen.

The plaintiff has filed an appeal against the decision of the Higher Labour Court of Hessen with the Federal Labour Court (case no. 5 AZR 75/25), meaning that a decision by the highest court remains to be seen. It will be particularly interesting to see whether, in the present case, the principles developed by the Federal Labour Court in its established case law can or must be deviated from due to the special circumstances of the company (long distances, special safety regulations).