Definition and Legal Framework of Workwear
Workwear includes all items of clothing that employees are required to wear or predominantly wear in the course of their professional duties to meet specific operational, hygiene, or safety requirements at the workplace. The term is distinct from regular everyday and private clothing as well as from protective clothing, though the boundaries may be fluid in practice. The legal classification of workwear is particularly relevant in employment and tax law.
Employment Law Provisions Concerning Workwear
Obligation to Wear Workwear
The duty to wear workwear arises either from individual employment contract provisions, collective bargaining agreements, or statutory requirements, for example to fulfill occupational health and safety obligations by the employer or to comply with hygiene regulations (such as in the healthcare sector under § 23 (4) Infection Protection Act). Furthermore, the employer’s right to issue instructions under § 106 of the Commercial Code (GewO) may justify an instruction to wear workwear, provided that operational interests necessitate this.
Acquisition, Maintenance, and Cost Allocation
According to § 615 sentence 3 of the German Civil Code (BGB), the general principles regarding work performance, and the provisions of the Occupational Health and Safety Act, the obligation to provide and maintain workwear may lie with either the employer or the employee. The decisive factors are the employment contract or collective bargaining agreements. If operational reasons—particularly health or safety concerns—mandate the wearing of workwear, the employer is generally responsible for the costs of procurement, cleaning, maintenance, and replacement. This is especially true where wearing workwear is strictly prescribed (see also § 3 (3) Occupational Health and Safety Act).
On the other hand, if the clothing is regular attire that serves no specific occupational purpose, employees may be required to bear the costs. Distinctions are made with reference to case law on so-called ‘civilian clothing.’
Co-Determination Rights of the Works Council
Pursuant to § 87 section 1 no. 1 and 2 of the Works Constitution Act (BetrVG), the works council holds a mandatory co-determination right on matters of company regulations, including the introduction and design of workwear. This covers aspects such as style, design, material quality, as well as rules for cleaning and financing.
Tax Aspects of Workwear
Definition of Tax-Deductible Workwear
Workwear may be deducted as work-related expenses under § 9 section 1 sentence 1 of the Income Tax Act (EStG), provided it is typical occupational clothing. Typical pieces of workwear include, for example, mechanic’s overalls, doctor’s coats, uniforms, or protective suits. Clothing that can also be worn in private life (‘civilian clothing’), even if worn primarily at work, is not deductible.
Recognition by Tax Authorities
The Federal Ministry of Finance and the fiscal courts have made numerous classification decisions regarding the tax recognition of workwear. The following criteria are decisive:
* Clear identification as workwear, e.g. by company logo or uniform design
* Exclusively intended for wear within a professional context
* Not suitable for private use (cf. Federal Fiscal Court (BFH), judgment dated 16.03.1972 – VI R 19/71)
The expenses for purchasing, cleaning, and repairing typical workwear may be claimed as work-related expenses in the employee’s tax return. Detailed documentation is required for this purpose.
VAT Implications
If the employer provides workwear free of charge, this may have VAT consequences (non-cash benefit), provided that the clothing is suitable for private use. If the clothing is provided exclusively for professional use, taxation does not apply.
Workwear in the Context of Occupational Safety
Distinction Between Workwear and Protective Clothing
Workwear differs from personal protective equipment (PPE) regulated under occupational safety law according to the PPE Usage Ordinance. While PPE is meant to protect against occupational health risks (e.g., helmets, safety goggles, safety shoes), workwear mainly includes representative, hygiene, or function-specific clothing. The obligation to provide and bear the cost for PPE always lies with the employer (§ 3 section 3 Occupational Safety and Health Act, § 4 PPE Usage Ordinance).
Hygiene and Safety Requirements
In certain industries, particularly healthcare, the food industry, and skilled trades, binding regulations exist regarding the wearing and regular cleaning of workwear. For example, pursuant to § 36 of the Infection Protection Act (IfSG), businesses may be required to implement protective measures against infections by ensuring the use and maintenance of appropriate workwear.
Further Legal Aspects and Special Considerations
Data Protection and Personal Rights
The obligation to wear certain workwear, especially with name badges or prominent corporate emblems, touches on the general personal rights under Art. 2 section 1 in conjunction with Art. 1 section 1 of the Basic Law (GG). Employers must, therefore, strike a reasonable balance between operational interests and the personal rights of employees.
Principle of Equal Treatment
Regulations regarding workwear must comply with the principle of equal treatment as per § 75 of the Works Constitution Act (BetrVG) and the General Equal Treatment Act (AGG). They must not disadvantage or favor individual groups of employees without objective reason.
Workwear and Liability
Liability for Damage to Workwear
For damage to workwear caused in the course of employment, employees are generally entitled to compensation from the employer, provided the damage occurred during the performance of duties and was not caused by gross negligence. Conversely, no claim exists in the case of privately used or improperly handled workwear.
Summary
Workwear is a complex term with far-reaching significance under employment, tax, and occupational safety laws. The specific requirements for wearing, cost allocation, maintenance, and tax treatment are essentially governed by operational, collective, and statutory regulations. A clear distinction from protective clothing and from clothing suitable for private use is essential for legal classification. The employer has comprehensive obligations regarding the use of workwear, which are particularly significant for occupational safety, hygiene, and equal treatment.
Frequently Asked Questions
Who is responsible for bearing the costs of providing workwear?
In Germany, the basic rule is that the employer is obliged to provide and bear the cost of workwear if the wearing of specific clothing is required for occupational health or safety reasons by law or is expressly stipulated by employment contracts, collective agreements, or company policies. This is regulated in particular by the Occupational Health and Safety Act (§ 3 ArbSchG), the accident prevention regulations of the employers’ liability insurance associations (especially DGUV Regulation 1, § 30), as well as by collective agreements and works agreements where applicable. In such cases, the employer is not only responsible for procurement but also for the regular cleaning, maintenance, and, if necessary, renewal of the workwear. Exceptions apply only if it is merely non-mandatory, representative, or personally desired work clothing – in such cases, deviating agreements can be made, provided these are expressly stipulated in the employment or collective agreement.
Can the employer require the employee to wear workwear or wash it outside of working hours?
In principle, the employer may not require the employee to wear the prescribed workwear outside their regular working hours. Working time regulations make it clear that activities such as changing clothes, if these are significantly necessitated by work requirements, are generally regarded as compensable working time. This has been confirmed, among others, by the Federal Labour Court (BAG, judgment of September 6, 2017, Case No.: 5 AZR 382/16). Responsibility for cleaning the workwear basically lies with the employer, unless it involves everyday clothing or the employee has contractually agreed to clean the clothing independently and receives appropriate compensation for this.
Can the employer impose sanctions if workwear is not worn or not worn correctly?
The employer is entitled and even obliged to monitor compliance with the requirement to wear prescribed workwear in the workplace and to enforce adherence. This is based on the employer’s duty of care and responsibility for ensuring occupational safety. If employees fail to comply with this obligation, labor law consequences up to and including warnings and, in the case of repeated violations, even dismissal may ensue. However, the sanctions must be proportionate and appropriate. Employees should first be given an opportunity to fulfill their obligations and to be adequately informed about the importance and necessity of workwear. Summary dismissal is generally only possible in the case of persistent and deliberate refusal or serious breach of duty.
What legal requirements apply concerning the equipment and quality of workwear?
The specific requirements for the equipment and quality of workwear must comply with the current occupational and health regulations as well as the requirements imposed by the employers’ liability insurance associations. Key standards include the Occupational Health and Safety Act, the relevant accident prevention regulations, and applicable DIN standards (e.g., for chemical protective clothing or protective gloves). The clothing must be designed to address the respective workplace risk and not compromise the safety or health of employees. In addition, individual requirements such as fit, functionality, allergies, and potentially religious considerations must be taken into account. Beyond the minimum requirements, the works council may exercise co-determination rights pursuant to § 87 section 1 no. 1 and 7 BetrVG.
Are there any special tax considerations regarding the provision or allocation of workwear?
For workwear that is provided by the employer and used exclusively for professional purposes, no taxable non-cash benefits are incurred (§ 3 no. 31 EStG). However, if the clothing can also be used privately, it may be considered taxable employment income. The distinction is made based on the clothing’s functionality and external appearance: genuine workwear includes, for example, uniforms, protective suits, or clothing bearing a company logo that is not typically worn in everyday life. Laundry allowances or expenses for self-purchased work clothing may, under certain conditions, be claimed as work-related expenses in the tax return.
Can the employee keep the workwear after termination of employment?
Whether the workwear remains with the employee after termination of employment or must be returned depends on individual agreements and ownership of the clothing. Typically, workwear provided by the employer remains the employer’s property and must be returned. Exceptions may apply if it is custom-fitted clothing or items that cannot be reused, or if the employer has expressly waived return. Relevant provisions are usually found in the employment contract or a works agreement. If the workwear is not returned, the employer may generally demand compensation or offset the value against outstanding claims.
