Based on the ECJ case law on the subject of working time recording, the BAG interpreted the German Occupational Health and Safety Act in accordance with European law (BAG, decision of 13.09.2022 – 1 ABR 22/21).

Working time recording for compliance with occupational health and safety regulations

Section 3 of the German Occupational Health and Safety Act (ArbSchG) states that employers are obliged to provide a suitable organization and the necessary means to comply with occupational health and safety regulations. The BAG reads this – against the background of the ECJ ruling – to mean recording working hours.

Professor Dr. Gregor Thüsing (University of Bonn) called the decision „a bombshell“. The specific decision taken with regard to working time recording was unexpected; the underlying legal question was actually whether the works council had a right of initiative with regard to the introduction of electronic time recording systems.

To date, the obligation to record working time established by the ECJ has not been transposed into national law by the German legislator; the ECJ had not set an implementation deadline. This has changed as a result of the BAG ruling – the employer’s obligation to record working time has also been established in Germany.

Numerous implementation options in practice

The ECJ ruling has granted the member states a wide scope for implementation. The BAG now stipulates the requirements to be met by time recording systems: They must be reliable, objective and easily accessible.

There are various implementation options for this. The simplest option is to record working time manually. Time recording does not necessarily have to be done electronically, but is also permissible in paper form. Templates for timesheets to print out are available on the Internet. However, it is important to bear in mind that the paper form often involves higher costs and effort. For larger companies in particular, this type of time recording is probably not very practical.

Another option is locally stored documents with a list of hours worked – however, these are prone to errors and tend to be confusing.

Stamping using so-called time clocks used to be very common, but today it is not very popular – for good reason. The devices require a certain amount of maintenance and the punch cards are quickly lost or damaged.

The market for simple time recording apps or PC software is therefore growing steadily. These simplify workflows through intuitive processes and digital integration of all employee groups. Digital programs also make evaluation easier for the employer, as individual timesheets do not have to be compared with each other, but instead there is a central access option to the company’s overall recording. Another major advantage is the simple forwarding to digital payroll accounting systems (e.g. DATEV). As a result, digital solutions mean less bureaucracy and the elimination of manual administration processes.

Themenschwerpunkt Arbeitszeiterfassung

In unserem Themenschwerpunkt „Arbeitszeiterfassung nach dem BAG“ beschäftigen wir uns mit der rechtlichen und praktischen Ausgestaltung der Arbeitszeiterfassung nach der jüngsten europäischen und höchstrichterlichen Rechtsprechung. Bisher erschienen in dieser Reihe eine Darstellung der EuGH-Entscheidung zur Arbeitszeiterfassung, des nachfolgenden Urteils des Bundesarbeitsgerichts und die sich aus dieser Rechtsprechung ergebenden Konsequenzen für die betriebliche Praxis.