The plaintiff had been employed as a secretary since January 2014. In September 2016, her employer gave her extraordinary notice.

In the subsequent dismissal protection process, the parties agreed by way of a settlement that the employment relationship should end at the end of January 2017. Up to this point in time, the plaintiff was irrevocably released from payment of the usual remuneration; Holiday entitlements that still exist should be offset against the leave of absence.

At the time of the termination, the plaintiff's working time account had a credit balance of 67.10 hours. She demanded their payment when the employment relationship ended. When the employer refused, citing the fact that she had been released from work, she again brought an action before the labor court.

The Labor Court of Münster shared the plaintiff's view in the first instance. However, the employee was defeated in the appeal instance called by the employer. The Court of Appeal argued that the settlement that was reached only regulates the offsetting of existing vacation entitlements. However, it is the

Overtime for a mere entitlement to time off in lieu. The employer can determine the timing of this through his managerial authority. In the opinion of the judges, a regulation in the comparison was therefore not necessary.

The decision of the BAG

The Federal Labor Court ruled that the expiry of working time credits in the context of a court settlement always requires precise regulation. A simple regulation that provides for an irrevocable exemption does not meet this requirement. It would not have been immediately obvious to the employee that this should also include her overtime.

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