Claiming overtime pay: what if breaks are deducted automatically?

The case: work performed, but a break was deducted

A resident doctor was scheduled to work 30 hours a week, spread over five six-hour days. Her employment was governed by the TV-Ärzte/VKA collective agreement. She worked additional hours. The hospital paid for additional work in principle, but automatically deducted breaks totalling 59 hours and three minutes. The doctor said she had worked during those periods. Breaks actually taken were recorded separately (Federal Labour Court, 5 AZR 51/24, paragraphs 2 to 9 and 14).

The Federal Labour Court set aside the appellate judgment dismissing the claim. An automatic deduction did not establish an actual interruption of work. The lower court had also demanded too much detail about the operational reasons for the additional work. The case was remitted for further examination. The Federal Labour Court did not finally decide whether or how much payment, including any supplement, was due (paragraphs 15 and 36 to 46).

Two questions belong together

First establish on which days and between which times you worked beyond your agreed hours or remained available for work as instructed. The employer must respond specifically to a sufficiently detailed account. Facts not adequately disputed may be treated as admitted in proceedings. This is a graduated duty to state facts under section 138 of the German Code of Civil Procedure, not a general reversal of the burden of proof (Federal Labour Court, 5 AZR 51/24, paragraphs 13 to 15).

You must also explain why the additional work is attributable to the employer. It may have been expressly ordered, approved afterwards, knowingly tolerated or necessary to complete assigned duties. The duty to record working time does not remove this requirement. Disputed facts generally still have to be proved (paragraphs 17 to 19).

What a time record shows and what else helps

In the supplementary judgment of 4 May 2022, 5 AZR 359/21, a delivery driver had sufficiently described his working hours. However, his general statement that completing the assignments required working without breaks did not explain the operational circumstances in enough detail. His appeal on points of law was dismissed. Mere presence or uncorrected clock-in and clock-out records do not automatically establish approval of all overtime (paragraphs 15 to 18 and 31 to 37).

It therefore helps to connect working time with the actual assignment. For an express instruction: who required what additional work, and when? For tolerated overtime: who knew about which additional hours and allowed them to continue? For necessary additional work: which duties, deadlines or processes made the agreed hours insufficient? These are assessment questions, not a requirement to produce an uninterrupted minute-by-minute activity log (5 AZR 359/21, paragraphs 31 to 37; 5 AZR 51/24, paragraphs 19 and 41).

No rigid requirements for every working day

This is where the 2025 judgment matters: recurring duties and typical processes on the neurosurgical ward could explain why the additional work was required. In those particular circumstances, the doctor did not have to describe every reason separately for every individual day. For the remitted proceedings, the Federal Labour Court specified that if she sufficiently explains the operational causes, the hospital must state specifically why a break would nevertheless have been possible (paragraphs 41 and 42).

That approach cannot be applied indiscriminately to every occupation. The work schedule, duties, actual processes and applicable agreements remain decisive. In the particular hospital case, failing to complete a correction form did not automatically rule out approval or toleration of the additional work (paragraphs 36 and 39 to 41).

Assess payment and break protection separately

Additional hours do not always result in additional money. The basis is the applicable pay agreement and, where its conditions are met, section 612 of the German Civil Code, which provides for an implied agreement to pay. Review the employment contract, collective agreement, working-time account and compensation already provided. An overtime supplement is a separate question; even in the hospital case, entitlement to that supplement remained undecided (5 AZR 359/21, paragraphs 18 to 21; 5 AZR 51/24, paragraph 46).

Breaks also protect health: section 4 of the German Working Time Act generally requires at least 30 minutes for more than six and up to nine working hours, and 45 minutes for more than nine hours. Possible payment for work actually performed does not permit mandatory breaks to be skipped in future.

How to prepare for an assessment

Our recommendation: preserve records promptly and describe what actually happened truthfully. Our simplified comparison: saying “present for eight hours” provides less information than combining the schedule, breaks actually taken and a specific instruction to finish an assignment that day. That still does not establish an entitlement by itself.

• Collect the employment contract, applicable collective provisions, payslips and time records.
• List dates, start and finish times and actual breaks clearly.
• Match instructions, approvals, schedules and potential witnesses to the relevant events.
• Have any contractual or collective exclusion periods and previous payment requests checked promptly, rather than waiting until employment ends.

Scope of the source review

This article explains the judgments from 2025 and 2022. As of the source review on 24 October 2026, further procedural developments in 5 AZR 40/25 could not be verified through an official full-text decision. This is therefore not an exhaustive account of current case law.