Introduction

As part of its decision of 13 September 2022 (Case No. 1 ABR 22/21), the Federal Labour Court (FOPH) stated that the recording of working time is already mandatory under German law to protect employees.

In doing so, the FOPH essentially refers to the ruling of the ECJ of 14 May 2019 (ECJ Case 55/18 CCOO), which concerned the interpretation of the European Working Time Directive (2003/88/EC). We also reviewed this judgment in blog article (read more at https://rickert.law/verpflichtung-des-arbeitgebers-zur-systematischen-arbeitszeiterfassung/).

The ECJ had ruled that employers are obliged to set up an objective, reliable and accessible system to record the working hours of their employees. EU member states are required to implement this obligation and to regulate details.

What about Germany?

In Germany, no steps have yet been taken. Therefore the FOPH lends weight to the ECJ ruling and urges politicians to finally create legal certainty for German companies through suitable regulations. What is new, however, is that the FOPH states, there already is an obligation for employers to record working time in Germany because section 3 (2) no. 1 of the ‘Safety and Health at Work Act’ is to be interpreted in the light of EU law.

Even so in its reasons for the judgement, published last December, the FOPH did not yet make any substantive specifications for future regulations. It was still left open whether the system should be digital or analogue.

In addition, the FOPH clarified that the documentation of working hours can be delegated to the employees themselves, which is interesting, for example, regarding home office work. Premature conclusions or fears of the end of trust-based working hours are therefore unfounded. Rather, the FOPH emphasises that the sole purpose of recording working time is to protect employees: to prevent them from working too much and not taking periods of rests.

The Federal Ministry of Labour has announced that it expects to present a proposal for the design of working time recording in the Working Time Act in the first quarter of 2023. So far, the Working Hours Act only stipulates the recording of overtime and work on Sundays and public holidays.

Conclusion

It is advisable for employers to promptly set up a corresponding recording system now or at least take a closer look at practicable models. At least so far, there is no need to fear a penalty for failing to set up such a system.