Germany: The end of trust-based working hours in Germany?

Based on its wording, German law only provides for the recording of working hours in certain cases. However, the Federal Labour Court (decision of 13/09/2022) has decided that there is a general obligation to record working hours (i.e. start and end of daily working hours and thus their duration including overtime). In the absence of express legal standardisation of such an obligation, the court derives this from an “EU law-compliant interpretation” of § 3 para. 2 no. 1 ArbSchG (Arbeitsschutzgesetz [Occupational Health and Safety Act]). The Federal Labour Court essentially states the following about the design of the system for recording working hours: As long as no regulations have (yet) been made in specific terms by the legislator, there is room for manoeuvre. The recording of working hours does not have to be done electronically without exception. Depending on the activity and company, paper records may also suffice. Also, delegating the recording to the employees is not excluded.                

The Federal Ministry for Labour and Social Affairs announces that it is expected to make a “practical proposal” for the regulation of the recording of working hours in the Working Hours Act in the first quarter of 2023. Until it is clear what the statutory regulation will look like, employers should follow the case law of the Federal Labour Court described above. They should check existing time recording systems to see if they enable reliable and accurate recording of daily working hours (including overtime). If necessary, time recording must be implemented, or an existing recording system must be adjusted. It is recommended to look for solutions that involve as little effort and costs as possible, because the future statutory regulation, depending on what it will look like, can require an adjustment of the time recording system. If there is a works council, its right of co-determination pursuant to § 87 para. 1 no. 7 BetrVG (Betriebsverfassungsgesetz [Works Constitution Act]) must be observed.

Autor: Dr. Bernhard Heringhaus