Abgeltung von Überstunden während der Freistellung? Nur bei ausdrücklicher Regelung!

In order to avoid intended termination and following terminations that have already been given, the parties to the employment contract regularly regulate the modalities of the employee's departure from the employment relationship using settlement or termination agreements. The vast majority of termination or winding-up agreements also contain provisions for releasing the employee. There are a few things to consider here.

For the purpose of an exemption regulation
On the one hand, such a regulation has the purpose of ensuring that an employee whose departure has already been determined and who has already “finished” with the company does not cause unnecessary unrest in the company. On the other hand, this also gives the employee the opportunity to look for new employment in peace.
In short: As a rule, both parties have an increased interest in an amicable release as soon as the employee's departure is certain.
On the content of an exemption regulation
The parties often agree that the employee will be irrevocably released. On the one hand, this means that the employer cannot usually end the leave unilaterally and the employee therefore does not have to constantly expect to have to return to work. On the other hand, only in such a case is the employer entitled to order vacation to be taken during the exemption and to record this in the exemption clause.
During the exemption phase, which may last for several weeks or even months, there is an understandable interest on the part of the employer to offset the agreed exemption against the vacation and overtime entitlement to which the employee is still entitled and which arises during the exemption phase.
On the design of the regulation
Many employer representatives are “on the radar” of the fact that vacation should be taken during the release and that a corresponding clause must be recorded in the termination or winding-up agreement. On the other hand, people often forget to include a corresponding regulation for overtime.
As the Federal Labor Court recently found, the lack of such an offsetting regulation can lead to noticeable financial consequences.
On the latest developments in case law
In the case to be decided by the Federal Labor Court, employers and employees agreed as part of a court settlement that the employee would be released (irrevocably) for a period of approximately two and a half months. As is often the case, the exemption agreement stipulated that the remaining vacation would be taken during this period. However, the employee's overtime was not mentioned.
The failure to mention the accrual of overtime led to the employee taking the view that it would not be worked during the leave and would therefore have to be compensated financially after the end of the employment relationship. The employer, however, rejected the claim on the grounds that it would emerge from the overall circumstances that not only vacation but also overtime should be compensated during the release phase.
The legal question was assessed differently by the courts dealing with the matter in the subsequent appeals process. The Münster Labor Court agreed with the employee's opinion and stated that overtime can only be worked during the release if the relevant clause clearly provides for this. The Hamm Regional Labor Court, on the other hand, referred to the overall circumstances cited by the employer and stated that even without the express mention of overtime, the interests of the parties resulting from the agreement and the other accompanying circumstances would indicate that the irrevocable exemption would result in the compensatory time off from the working time account should also be fulfilled.
The Federal Labor Court has now provided legal clarity in its recently announced decision (judgment of November 20, 2019 - 5 AZR 578/18). The responsible chamber adopted the more employee-friendly view and decided that overtime would not be automatically included in an agreed release period. Rather, the parties must expressly specify this in a corresponding clause. The clause must therefore state that not only vacation entitlement but also overtime is included.
Conclusion
This decision clearly shows that a termination agreement must not leave any point unanswered. Rather, all aspects that may be relevant during the processing of the employment relationship and even after its termination must be clearly regulated so that after the termination or winding-up agreement has been concluded between the parties, there are no longer any questions left open and this agreement represents a final regulation.