Companies must record the working hours of employees systematically in the future

German Labour Court Decision has a high impact on trust-based working time mobile work and home office work

In future, employers must offer the presumptions for a systematic time recording for working hours of employees. This was decided by the BAG in a landmark ruling on September 13, 2022. The decision will not only have consequences for the trust-based working hours model, but also for mobile work and home office work.

Specific case decided by the Federal Labour Court (BAG)

The dispute between the parties primarily involved the question whether the works council is entitled to a right of initiative with regards to the introduction of a system for the recording of working hours.

In its ruling, which is only available as a press release, the BAG clarified that it was not a question of the right of initiative, since sec. 3 para. 2 no. 1 of the Occupational Health and Safety Act (ArbSchG) already stipulates that employers must "ensure suitable organization and provide the necessary means" to ensure health protection. According to the BAG, this also includes the obligation to introduce a system that records the working time worked by the employee (based on an interpretation in conformity with European law). A corresponding (proactive) co-determination right of the works council pursuant to sec. 87 Works Constitution Act (BetrVG) only existed if and to the extent the operational matter is not yet regulated by law.

The President of the BAG, Inken Gallner, stated that there is already an obligation to record working time "if one interprets the German Occupational Health and Safety Act subject to the proviso of the European Court of Justice (ECJ)." She is thus referring to the ECJ's "time clock ruling" of May 14, 2019 (Case C-55/18), in which the ECJ had already ruled that employers are obliged to create reliable systems with which the daily working time of each employee can be measured.

The regulation of sec. 3 para. 2 no. 1 ArbSchG referred to by the BAG is almost identical in wording to art. 6 para. 1 of the EU Directive 89/391, which reads: "Within the scope of his obligations, the employer shall take the measures necessary for the safety and health protection of workers, including measures for the prevention of occupational hazards, for information and instruction, and for the provision of suitable organization and the necessary means".
According to sec. 22 ArbSchG, competent authorities for the supervision of occupational health and safety can impose measures to be taken against employers in order to fulfill the obligations arising from the ArbSchG. If companies do not comply with an enforceable order or act contrary to it, they risk fines of 5,000 euros up to 30,000 euros in accordance with § 25 para. 2 ArbSchG.

Consequences for the day-to-day business

To date in many business sectors employers abstain from a systematic time recording, in particular if models of trust based working time are established. Especially the forms of work caused by the pandemic including the resulting development towards mobile work and home office work are based on such working time models. In this respect, a rethinking is required, even though the BAG has not yet given any indication as to what exactly the requirements are in detail (in particular from a technical point of view) when it comes to a systematic and legally compliant recording of working hours.

Furthermore, it remains to be seen whether the current business practice to delegate the time recording to the employees can be maintained and if and to which extent the employer will be subject to control obligations.

Moreover, potential consequences in terms of data protection law as well as the extent of administrative efforts and financial burdens are not yet foreseeable.

The publication of the full text of the BAG's reasons for its decision is therefore eagerly awaited.

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