1. Facts: Overtime in the hotel industry
In the present case, there was an employment relationship between the plaintiff and the defendant, a company in the hotel industry. The plaintiff's employment contract contained a provision on overtime, according to which overtime was only to be paid if it was either expressly ordered or was absolutely necessary for operational reasons. In addition, they had to be subsequently and immediately confirmed in writing by the supervisor.
At the beginning of 2014, the plaintiff worked a considerable amount of overtime due to a high workload, but this was not ordered in advance. Later, a superior authorised this overtime in writing. Despite this authorisation, the defendant refused to pay the overtime pay, citing the contractual provision. The plaintiff then brought an action before the labour court.
2. First-instance judgement: Labour court rules in favour of the plaintiff
The labour court ruled in favour of the plaintiff and ordered the defendant to pay the overtime worked. It did not follow the contractual provision, as this was deemed invalid. The defendant appealed against the judgement to the Cologne Regional Labour Court (LAG), which re-examined the case.
3. Appeal before the Cologne Higher Labour Court: confirmation of the first-instance judgement
The Cologne Regional Labour Court followed the decision of the Labour Court and ruled that the defendant must pay the overtime. It considered the contractual provision on recognising overtime to be inadmissible, as it violated Section 307 of the German Civil Code (BGB). The decisive point was that the overtime was subsequently authorised in writing by the superior, the hotel manager. This authorisation was sufficient to trigger the plaintiff's entitlement to remuneration.
4. Legal basis: Standing case law of the Federal Labour Court
The Regional Labour Court based its decision on the established case law of the Federal Labour Court (BAG). According to Section 611 of the German Civil Code (BGB), the employer is only obliged to pay overtime if it causes it or if it is attributable to it. According to the BAG, overtime must either have been ordered, approved, tolerated or necessary to complete the work. It is legally sufficient if overtime is tolerated or approved by the employer, even if it was not explicitly ordered.
The clause in the employment contract, which only provides for the remuneration of expressly ordered or absolutely necessary overtime, contradicted this case law and ruled out subsequent approval. It was therefore declared invalid by the court.
5. Ineffectiveness of the clause and unreasonable disadvantage
The clause in the employment contract was classified as invalid in accordance with Section 307 (1) and (2) BGB, as it unreasonably disadvantaged the plaintiff. This is the case if a contractual provision deviates from the essential basic ideas of the statutory provision, as was the case here. The BAG's established case law on the remuneration of overtime constitutes an essential basic idea of the regulation pursuant to Section 611 (1) and Section 612 BGB. The contractual clause added additional requirements for the recognition of overtime that are not in line with the legal situation, such as mandatory necessity for operational reasons and immediate written confirmation.
Overall, the Cologne Higher Labour Court ruled that the contractual clause constitutes an unreasonable disadvantage to the employee and is therefore invalid. The plaintiff is therefore entitled to remuneration for the overtime worked and subsequently authorised.
