"Work first, pleasure later" – almost everyone knows this saying, and many supervisors are fond of using it. But breaks too are an integral part of work. The German Working Time Act (Arbeitszeitgesetz, ArbZG) precisely regulates when and how long breaks must be taken – both in the office and in the home office. Statutory break periods are graded according to the hours worked. But what applies in detail and which exceptions exist?
How break periods are regulated by law
In addition to the maximum working time, the ArbZG (Working Time Act) also regulates the duration of breaks. Rest breaks are precisely defined in Section 4 ArbZG: For a working time of more than six and up to nine hours, a statutory break of at least 30 minutes applies. Anyone working more than nine hours must interrupt work with a rest break of at least 45 minutes.
| Working time per day | Statutory break period |
| under 6 hours | no break required |
| from 6 to 9 hours | at least 30 minutes |
| over 9 hours | at least 45 minutes |
In addition, the Working Time Act expressly provides that rest breaks may be divided into segments of at least 15 minutes each. Only an interruption of work exceeding 15 minutes counts as a recovery break.
The break rules also apply unchanged in the home office. There too, a break is mandatory after six hours of working time. As an employee, you are legally obliged to observe your breaks – regardless of the provisions of your employment contract. This is not only about complying with statutory requirements. Missed breaks have a direct impact on concentration and thus on the quality of work. Especially in the home office, it is important to take regular breaks and to integrate sufficient exercise into the working day in order to remain productive in the long term. This benefits not only employees but also employers.
Do break periods have to be recorded?
The statutorily prescribed break period does not count as working time and is therefore not paid. The employer may therefore deduct the break period from working time. Other arrangements may be agreed in the employment contract – including an obligation to record working time.
But beware: If there is no evidence that the break was actually taken or granted, a blanket deduction by the employer may be unlawful. In one case, a court ruled that a company had to pay retroactively as working time those breaks that had not been made possible. The time records did not show that the employee had taken the daily prescribed one-hour lunch break during shift time.
Rest periods between working days
In addition to the break rules, a mandatory rest period between two working days is also prescribed. But how much time must pass at minimum between the end of work and the start of the next working day?
Adult employees must, pursuant to Section 5 ArbZG, observe a rest period of at least 11 hours between the end of one working day and the beginning of the next. This rest period expressly applies even where multiple secondary jobs are held.
Example:
Andreas has two jobs. He works in the mornings at a bookshop and in the evenings behind the bar at a restaurant. There his shift only ends at 10 p.m. As a result, he is not permitted to start his work at the bookshop before 9 a.m. the next morning.
What counts as a work break and what does not?
Not every short interruption qualifies as a work break. Short pauses, for example to fetch a drink, are part of working time, as is going to the toilet. The rules on smoking breaks or operational breaks, by contrast, are less well known.
For smoking breaks, it depends on the individual case
Cigarette breaks are often clearly regulated, particularly in large companies, for example by a works agreement. A smoking break may be prohibited on the company premises or restricted to specific places, such as designated smoking areas. Some companies in practice tolerate smoking breaks as part of working time – but this should only be used in moderation, as there is no legal entitlement to it.
Furthermore, a collective bargaining agreement or employment contract may stipulate that employees must always clock out and back in before and after their smoking breaks. As a result, the smoking break is not counted as working time and must be made up.
Violations of the company's break rules (for example, excessive smoking breaks during working time) may result in a formal written warning (Abmahnung). Repeated disregard may even lead to termination!
The difference between an operational break and a rest break
A break for operational reasons is not a rest break. This so-called operational break (Betriebspause) is an unplanned or unexpected interruption of working time.
If, for example, a machine needs 15 minutes for a restart for technical reasons, this is not an unpaid work break. An operational break therefore constitutes paid working time – in contrast to the rest break.
Exceptions to the statutory break period
Statutory break periods are binding and, in principle, non-negotiable. Collective bargaining agreements, however, may regulate break and rest periods differently.
Exceptions to the general break rules are set out in Section 18 ArbZG and apply to:
- senior executives (leitende Angestellte)
- chief physicians (Chefärzte)
- heads of public authorities, their deputies, as well as persons in the public service with personnel responsibility
- employees who live in domestic community with the persons entrusted to them and who raise, care for or look after them on their own responsibility
- the liturgical area of churches and religious communities (sacristans, altar servers, and many others)
Differing statutory break rules for young persons
Young persons enjoy special protection at work. The legislator has even created a dedicated body of rules: the Youth Employment Protection Act (Jugendarbeitsschutzgesetz, JArbSchG). It also contains provisions on statutory break periods.
Minors must take a break of at least 30 minutes after just four and a half hours. From six hours of working time onwards, young persons must take a work break of 60 minutes (Section 11 JArbSchG). Young persons too may divide their rest breaks into 15-minute blocks. For young persons under 18, the statutorily prescribed rest period between two working days is at least 12 hours.
Consequences of breaching statutory break periods
Every employee not only has the right to a break but also the duty to observe the statutory break rules. This applies both to the daily break period and to the rest period between two working days. Ultimately, however, it is the employer who is legally responsible.
In the event of a breach of the statutory break rules, both fines and a custodial sentence are possible pursuant to Section 22 of the Working Time Act. A custodial sentence, however, is only conceivable where employers act intentionally and endanger their employees. A fine for an administrative offence (Ordnungswidrigkeit) in the case of a breach of statutory break periods may, depending on the incident, amount to up to 50,000 euros.
In addition, claims by employees are also conceivable. They may, among other things, demand remediation or damages – in particular where there are health problems caused by missed work breaks.
Statutory breaks – more than just an obligation
Statutory break periods are clearly regulated for the protection of employees and serve recovery and performance. With few exceptions, they apply to all employees. Inform yourself about the precise rules in your company and pay attention to compliance with your breaks – both in the office and in the home office. Because only those who work well rested can remain productive and creative in the long term.
Specialist Lawyer for Employment Law (Fachanwalt für Arbeitsrecht) Mr Alexander Fuchs will be pleased to advise you on any further questions regarding this complex matter.
