Working at German labour courts can sometimes be funny. And it's always when the parties to an employment dispute over strange things.
In the case in question, an employer had cut his employee's salary because he often went to the toilet. Too often, the employer thought, and kept a “toilet log” - he noted exactly at what times and for how long the employee went to the toilet over a period of two and a half weeks. He used the calculated time of over 6 hours as a reason to reduce the salary proportionately. The employer argued that the employee had worked around 90 hours less over a six-month period, extrapolated over the usual break times, and therefore paid a salary that was several hundred euros lower.
Was this legal? How is going to the toilet on duty assessed under working time law? Can the employer deduct toilet breaks from the employee's salary?
The answer to this question is basically “no”. This is because, unlike the so-called “smoking breaks”, going to the toilet counts as a natural need as part of paid working time. The question of how much time on the toilet can be considered “too long” or “too often” cannot be answered in general terms and depends on the individual case.
In our case, the employee had successfully claimed his full salary in court and asserted digestive problems during the observation period (see decision of the Cologne Labour Court, AG Köln 6 Ca 3846/09). The court considered a reduction in salary due to digestive problems to be inadmissible. As a result, the employer had to pay the missing part of the salary.
However, the court's decision could have been different in other cases - if the employer had been able to prove that the trips to the toilet were not due to organic reasons, but were for an extended break. However, this is likely to be difficult to prove. In the times without cell phones, indications of this were if someone had “made themselves at home” in the toilet, for example if there were magazines or decorations there. If an employee uses a visit to the toilet as an opportunity to make a phone call, the situation is also clear.
This is because at this moment, the employee refuses to perform his contractually agreed work and thus violates his work obligation. In such a case, the employer can issue a formal warning to the employee. If the employee continues to behave in breach of contract, the
I publish interesting questions about German employment law judgements on this blog regularly. If you need special advice tailored upon your individual case, don't hesitate to get in contact with me.
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