Samenvatting

A judgment of the Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) of 4 May 2022 has further consolidated the standards developed specifically for the distribution of the burden of proof in the context of compensation claims for the performance of overtime by the employee. The burden of proof lies with the employee and cannot be met by giving mere circumstantial evidence (cf. BAG, judgment of 10 April 2013 – 5 AZR 122/12). Following this recent decision, a different result also does not result from the obligation under Union law to introduce a system for measuring the daily working time of the employee. The background to this is the discussion initiated by the court of first instance as to whether the interpretation of the Working Time Directive 2003/88/EC requires that the employee be granted relief in the process concerning the payment of overtime, since the national legislature has not yet sufficiently transposed the Directive. The BAG has now decided that it is up to the federal legislator to decide on the specific design of the system. Moreover, the BAG found that the Directive’s scope is limited to working time law as a regulatory matter of occupational health and safety law, but the Directive does not provide the Member States with any guidelines on remuneration issues. In contrast, it does not affect the burden of proof in favour of employees in overtime compensation proceedings.