The rulings of the ECJ and BAG establish the obligation of employers to record their employees‘ working hours to the second in future. As progressively as the BAG in particular is seeking to strengthen employee rights, implementation in practice is all the more tricky on the basis of the decision.

The end of trust-based working hours?

The model of trust-based working hours is popular with employers and employees – does the new case law mean the end of this concept? The great advantage of this model is the flexibility it offers, particularly in combination with working from home.

The ECJ and BAG rulings clearly state that working time should be monitored and recorded. This is based on the idea that the recording of working time should create transparency and evidence for both sides. In principle, this contradicts the principle of trust-based work. At the same time, however, the courts also have employee protection in mind, meaning that the obligation to record working time should not have any detrimental effects on employees‘ day-to-day work.

However, these protection concepts are not mutually exclusive if employees are allowed to record their working hours themselves. Up to now, it has not been stipulated that working hours must be recorded by the employer. If, for example, employees enter their hours themselves in a time recording system, sufficient transparency is guaranteed and trust-based working time can continue to exist.

Recording break times?

The actual recording of break times is also difficult. The minimum times to be observed are prescribed in the Working Hours Act and are already automatically deducted by many working time recording systems. The start and end of work are then recorded and the legally prescribed breaks are deducted when calculating the total working time. But what happens if an employee exceeds their permitted break? Will every employee have trust-based working time in future?

Of course, it is an option that the employer trusts his employees to the extent that they either take their breaks exactly or ensure that the excess break time is made up after work. This works particularly well for systems that record generalized start and end times based on a shift schedule. The employee is then responsible for actually adhering to the recorded working time, while the employer is responsible for monitoring this. This may work particularly well for smaller companies, but it does not seem very practicable for larger work structures.

There are also systems, similar to the time clock, where you have to log out for a break and can log back in at the earliest after the prescribed time has elapsed. If the break is longer, this time is not included in the total time – it is recorded to the minute.

It is up to the employer to decide which system to use. Neither the ECJ nor the BAG have set specific requirements in this regard.

There are legal regulations for the reverse problem, where the employee does not actually take the break but it is automatically deducted by the system: Employees are not permitted to forgo the break to which they are legally entitled in the interests of employee protection, and it is also an administrative offense for the employer with the threat of a fine if they do not properly ensure that breaks are taken.

No more flexible home office?

Critics fear an end to the home office model, which has become particularly widespread due to the coronavirus pandemic. In times of an acute pandemic situation, the option to work from home was made mandatory in some cases, and many companies have continued to do so even after the coronavirus measures were eased. In some cases, leases for office space have been terminated as the number of offices required has decreased significantly. If working from home were to become impossible due to the recording of working hours, many companies would have to reschedule again.

As a general rule, working time worked at home must also be recorded in accordance with the new case law. Working time is to be considered independent of the place of work. However, there is no reason to fear an end to working from home. There are numerous technical developments that also make it possible to record working time for employees working from home. For example, it is possible to log in to an employee portal on their own PC or to use a mobile app for their smartphone. This means that digital working time recording can also be carried out in real time in the field.

Managers recorded?

The question of whether time recording must also be carried out for executive employees remains unresolved. In its decision, the BAG justifies the obligation to record working hours with the interpretation of Section 3 of the German Occupational Health and Safety Act in conformity with European law. The ArbSchG in turn refers to all employees – including executive employees. The Working Hours Act, on the other hand, which stipulates the permitted working hours, does not apply to managers.

There are no details on this in the reasons for the decision, but there are some indications that these are exempt from the obligation to record.

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.