The case (5 AZR 359/21) concerned a delivery driver who filed a claim for remuneration for overtime in the amount of EUR 5200, based on electronically created time records showing the overtime worked.

The case follows a very important ruling of the European Court of Justice (ECJ) on the topic, which, in 2019, called for an "objective, reliable and accessible system" for recording working time throughout the member states of the European Union (14 May 2019 - C-55/18) to be compliant with their general obligation to provide the organisation and means necessary for the protection of the safety and health of workers.

Nevertheless, it is for the Member States, in the exercise of their discretion, to determine the specific arrangements for implementing such a system, in particular the form that it must take, having regard, as necessary, to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings.

In Germany, the legislator will have to implement the ruling by amending the German Working Time Act (Arbeitszeitgesetz).

Even if this has not happened yet, it has been debated whether employers should or even already have to introduce working time recording.

For example, the local labour court of Emden in September 2020 ruled that employees claiming remuneration for overtime must only show when they worked. However, following the ECJ ruling, they must no longer demonstrate that the employer knew about the overtime, considering that he or she was able to know working times by inspecting the working time records he or she is obligated to monitor/control according to the ECJ.

The recent ruling of the Federal Labour Court (4 May 2022 – 5 AZR 359/21) clarifies that the previous principles on the burden of proof in overtime litigation remain in place despite the 2019 ECJ ruling until there is a change in legislation.

Consequently, the employee must still show and demonstrate that the employer has ordered or approved the overtime worked.

In this specific case, according to the Court, the delivery driver failed to fulfil this burden of proof, because he did not demonstrate that the hours worked were required considering his workload and to what extent the employer was aware of these circumstances.