Many professions require the wearing of special clothing, whether for hygiene or safety reasons (for example, in a hospital), or to show a particular corporate identity (for example, supermarket vendors). The worker does not wear the clothing because he wants to, but because the employer demands it. This leads to several problems: First, the question …
Many professions require the wearing of special clothing, whether for hygiene or safety reasons (for example, in a hospital), or to show a particular corporate identity (for example, supermarket vendors). The worker does not wear the clothing because he wants to, but because the employer demands it. This leads to several problems: First, the question arises whether the period of time to change clothes belongs to the daily working hours (which is usually limited to a maximum of 8 hours); on the other hand, it must be clarified whether usual remuneration is to be granted for this time. This is not just a theoretical problem, as a simple example calculation shows: Calculating 10 minutes a day for dressing and undressing in working clothes, this results in about 1.5% of daily working hours. This demonstrates that this problem is associated with considerable costs or potential savings.
For this reason, German courts have already dealt with this problem several times. They found that working time is engaged when the time spent changing clothes serves the interests of the employer. In this case, the employee does not dress in particular clothes in his own interest, but because the employer demands it. This applies to all garments that are worn specifically for the profession (eg protective clothing and hygiene clothing). Here, the employee only changes because the job demands it, so this is in the interest of the employer and counts towards working time. However the case law goes even further. If the work clothes are particularly conspicuous, the changing time is also treated as working time. Although these clothes could also be worn privately, this cannot – according to the Federal Labor Court – be expected of the employee. The Federal Labor Court has already answered several times the question of when the clothing is particularly conspicuous. In any case, if the color and design of the clothes clearly identifies the employer (and the name may even appear on the garment), there is particular conspicuousness. This the Federal Labor Court affirmed, for example, in relation to the yellow-blue clothing of a furniture store (Federal Labor Court from 10. November 2009, docket number 1 ABR 54/08). In a recent ruling, the court goes even further. It is not necessary for the specific employer to be identifiable. The allocation of clothing to a specific industry is sufficient. The worker cannot be forced to reveal his profession to the outside world. For this reason, even neutral white service clothing (for example, in elderly care) has particular conspicuousness (Federal Labor Court from 6. September 2017, docket number 5 AZR 382/16). In all these cases, the time spent changing clothes is therefore working time.
Working hours can therefore only be excluded if private use of the clothing is permitted and the clothes are not particularly conspicuous.
However, it is less clear whether these clothes change times have to be paid accordingly. Employment contracts usually do not contain any regulation in this respect. It would be possible, however, to regulate or exclude such payments in the employment contract. The same applies to collective bargaining agreements. If such a rule is missing, the clothes change times are to be compensated with the usual hourly wage. If costs are to be saved here, such a regulation is recommended.
However, it becomes clear that the employment law treatment of periods in which the primary employment contract activity is not provided is extremely problematic. In these borderline cases, extreme care must always be taken to avoid errors and, if necessary, costs.