Company practice

No entitlement to paid smoking breaks based on company practice

(Higher Labor Court Nuremberg, decision of August 05, 2015 – 2 Sa 132/15)

In many firms employers allow for working time to be broken up without requiring employees to work extra hours or reducing the claim to remuneration accordingly. No claim to remuneration for smoking breaks arises from the law nor from wage agreements. Now the Higher Labor Court of Nuremberg has decided that, despite long being permitted, there is no claim to remuneration for smoking breaks based on company practice if the employer is not aware of the frequency and duration of the breaks.

In the company, the case of which the High Labor Court of Nuremberg had to rule upon, it was customary that employees left their workplaces to smoke without using the time recording device. For that reason the employees were not subjected to any pay deduction for smoking breaks. This was changed by a company agreement, whereby the time recording device must always be used if employees leave their workplaces to smoke. This led to smoking breaks being deducted from working hours and no longer being paid. One of the employees filed for legal action and demanded payment for smoking breaks. The Higher Labor Court of Nuremberg confirmed the dismissal of the Labor Court of Wurzburg.

The Higher Labor Court of Nuremburg found that the employee could not expect payment for smoking breaks. A claim based on company practice rests in the regular recurrence of a certain behavior on the part of the employer, from which the employee could conclude that he would be granted the benefit/allowance on a permanent basis. The employee should not have anticipated this because it could not be assumed that the employer would forego several minutes/hours of work a day without exact knowledge of the extent and duration of the smoking breaks and commit to these in future. Furthermore, paid smoking breaks would entail unequal treatment of non-smokers because they must perform more work for the same payment. Finally, the employer is under obligation to protect the health of its employees and to prevent health risks. Paid smoking breaks would contradict this.

Practical Recommendations:

Employees interrupt work regularly and sometimes for a non-insignificant amount of time for their own ends, e.g. smoking, without authorization. The decision supports the “no work, no pay” principle. In order to eliminate any uncertainties with respect to authorized and unauthorized behavior, it is strongly recommended that clear regulations be drafted on break times and stamping obligations, e.g. within the framework of a company agreement or – in companies without works councils – in employment contracts and / or in working regulations.