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.