Smoking breaks not company practice

LAG Nuremberg, judgments dated 5.8.2015 – 2 Sa 132/15 and 5.11.2015 – 5 Sa 58/15 (final and absolute)

Employees who are allowed to leave their place of work to smoke without the employer knowing the precise frequency and duration of the respective breaks – but which the employer remunerates nevertheless – cannot trust in this always remaining this way. No entitlement to remuneration is created through company practice.

Legal action was filed by a smoker employee who has been employed by the defendant since May 1995. Over a period of many years, the practice had established itself in the defendant’s company of employees being allowed to leave their place of work to smoke, without having to clock in or out. Accordingly, the defendant did not deduct any wages for these breaks. Following several company directives on the protection of non-smokers, the “Works Agreement on Smoking in the Company” came into force on January 1, 2013. Among other things, this introduced an obligation to clock out and back in again when leaving the place of work to smoke – using the nearest time recording device and for the duration of the smoking break. After the defendant had deducted a total of 878 minutes from the plaintiff’s working time for smoking breaks in the period January to March 2013 and not remunerated these, the latter filed legal action for remuneration of the resulting losses, invoking the principle of company practice. After all, he had been able to deduce from the defendant’s conduct that the smoking breaks would also continue to be paid in future. He had not been deducted any wages prior to January 2013. Rather, the defendant had approved smoking breaks through continued payment of the remuneration. The works agreement that took effect as from January 2013 had not effectively altered the employment-contract claim based on company practice.

No sufficiently specified offer by the defendant due to lack of knowledge on the frequency and duration of the smoking breaks

The LAG (State Labor Court) Nuremberg denied a claim based on company practice. The defendant’s employees knew that the employer had no clear picture of the frequency and duration of the smoking breaks taken by the individual employees up to the coming into force of the “Works Agreement Smoking”, and would therefore have difficulty in objecting to the duration and frequency, or would hardly be able to produce corresponding evidence in the event of deductions from wages. If there is a lack of sufficient knowledge of company practice and if this is recognizable to the employees, it is not possible to assume a sufficiently specified offer by the employer.

No trust of the employees, deserving of protection, in future approval of paid smoking breaks

Given the significant scope of the arbitrary smoking breaks of between 60 and 80 minutes per day (!), no employee could trust in the defendant’s willingness to continue paying remuneration in future for such a long time of not working. In the opinion of the LAG Nuremberg, payment of the smoking breaks is, in particular, in no way related to the actual work performance to be remunerated. On the contrary, the plaintiff was demanding payment for not working. However, in the absence of any other statutory, collective-agreement or contractual legal basis, very special points of reference are required in order to create trust, deserving of protection, among the smokers, without being paid any counter-performance. Furthermore, smokers could likewise not trust in continuation of payment for the smoking breaks, as this would result in obvious unequal treatment of non-smokers. Because these would have to work an average of over 10 percent more than their smoker colleagues for the same remuneration, a fact that is easily recognizable for the latter.

Against this background, the plaintiff was not entitled to assume that this unequal situation would be retained in future, or that no wage deduction would be made for smoking breaks in future.

Summary

The decision of the LAG Nuremberg makes it clear that non-regulated smoking breaks do not create an entitlement based on company practice. Employees certainly cannot conclude that continued payment of remuneration by the employer over several years, without knowing the precise duration and frequency of the respective breaks, means the employer will continue this practice in future.