Facts of the case
There is disagreement between the employer (client, defendant) and employees (employee) on the question of whether employees can unilaterally withdraw from already agreed time compensation phases if they fall ill during this time. The compensatory time should not only be used to reduce excess hours, but also to recover from particularly stressful work, such as night work or overtime. In the opinion of the works council, employees had the right to withdraw from compensatory time off agreements in the event of illness. According to the employer, the agreement on compensatory time only led to a different distribution of working hours and did not primarily serve the recovery of the employees, so that the employees had no right of withdrawal. The works council finally went to court.
Legal opinion of the Supreme Court
The Supreme Court dismissed the complaint of the works council. Withdrawal from the time compensation agreement due to illness is not permitted - even if the time compensation is to be used for recovery as a result of additional workloads.
According to the Supreme Court's case law, the employer and the employee are generally bound by time compensation agreements that have already been made. This may only be deviated from unilaterally if operational circumstances make it unreasonable to adhere to the agreement. The fact that the compensatory time off is primarily intended to be used to recover from particularly strenuous phases of work (overtime, night work) is not considered an unreasonable operational circumstance.
A time compensation agreement is not a paid time-out in the legal sense, but merely a different distribution of working hours. There is no obligation to work during the period of compensatory time off. Therefore, illness during this phase does not count as prevention from work.
3. Conclusion
The unilateral withdrawal of an employee from a time compensation agreement due to illness is not permitted. This also applies if the time compensation is intended to help the employee recover from stressful work. The primary purpose of compensatory time off is not to recover, but to bring the average working time as close as possible to the normal working time.