EuGH: Time clock instead of flexible working hours?

The classic eight-hour day has already become obsolete in many companies, partly because many employees want to work flexibly. Does the good old time clock have to be reintroduced now?

Klaus Heeke: "How the respective employer fulfils its documentation obligation is initially left to him to decide - at least until the legislator in Germany takes up the judgment and tightens the national working time regulations in accordance with the judgment. The good old time clock will hardly play a role in view of today's technical possibilities."

As a consequence, however, this means that all companies now have to introduce a - new - system for recording working time. Is there a bureaucratic monster coming at the companies? Or is one App enough?

Klaus Heeke: "The companies most affected by this ruling are those that have hitherto practiced so-called trust-based working hours with their employees. It is precisely here that a hitherto non-existent, new administrative effort will have to be mastered - even if new digital systems promise simplifications compared with conventional systems."

Actually, we already have the German Working Time Act and the EU Working Time Directive. Aren't these regulations enough?

Klaus Heeke: "With the exception of certain sectors and irrespective of any collective bargaining or company regulations, the legal framework currently applicable in Germany only provides for an obligation to document overtime work. The situation is also comparable in other European countries. The European Court of Justice apparently regards this status as insufficient."

What will now happen to the employees who can work at any time and from any place via the Internet and who have so far been working on a basis of trust? Does the ECJ ruling mean the end of trust-based working time?

Klaus Heeke: "In any case, there will be a revolution in working hours based on trust, as has been practiced so far. Here, too, the statutory working time regulations have always applied, pursuant to which daily maximum working hours, break times, rest periods, etc. had to be observed. The new jurisprudence with the additional documentation obligation that it implies, however, brings with it a deterrent for the hitherto lived flexibility due to the higher documentation effort...".

When will the new principles come into force? Is a new legal regulation to be expected soon?

Klaus Heeke: "Judgments of the European Court of Justice apply directly and immediately, i.e. there is no need for legislative implementation in this respect. However, judgments as a rule still leave room for interpretation, which can result in contradictions to applicable legal provisions, be they part of national or European regulations. It is therefore to be expected that the German legislator will at least adapt the Working Hours Act to clarify matters. The European Court of Justice even calls for this in its decision."

In its judgment, however, the ECJ also allows exceptions to the recording of working time for certain areas of activity or certain companies with special characteristics. What are these companies, industries and activities?

Klaus Heeke: "It remains to be seen whether the expected legislative implementation of the requirements laid down by the European Court of Justice will lead to exceptions. This would certainly be conceivable above all for those industries or fields of work in which a certain flexibility lies in the nature of things due to the 'mental work' to be performed, i.e. in which an exact measurement would entail enormous expenditure, as for example with traditional services or the services of freelancers.

How should entrepreneurs deal with the ECJ ruling in practice without having to spend even more time on administrative obligations instead of core business?

Klaus Heeke: "That depends on the requirements that the legislator will place on proper documentation of working time in the future. It is to be hoped that the additional administrative effort undoubtedly required by many employers will be kept as low as possible - for example, by leaving it to the employer to decide freely how he technically implements compliance with the documentation obligation. 

Published: May 2019