Obligatory working time recording in Germany: rationale published

Introduction

Employers are obliged to establish and use a system to record the beginning and end of working hours, including overtime. The Federal Labour Court grants the employer some discretion in the design of the system. In particular, the recording of working hours does not have to be carried out electronically in any event and the obligation to record the daily working time can be delegated to employees.

Since 3 December 2022, the urgently expected decision-making rationale of the heavily discussed decision of the Federal Labour Court on the recording of working hours (decision of 13 September 2022, ref. 1 ABR 22/21) has been available. Until then, there was only a press release, which left many questions open.

Obligation to record working time follows from health and safety regulations

As already stated in the press release, the Federal Labour Court derives the employer's duty to record working hours from section 3 para 2 no. 1 of the Working Conditions Act. The Court emphasises that the aspect of working time is a significant component of the protection of the health and safety of employees. According to the case law of the European Court of Justice, occupational health and safety also includes the establishment of an "objective, reliable and accessible system" for the recording of all working hours.

Not only collection of data but genuine obligation to keep records

It follows from health and safety regulations that the beginning and end of daily working hours, including overtime, and thus also the duration of the working time itself, must be recorded. A mere "measurement" is not sufficient. The data collected on working time must be recorded in order to ensure that the position of the daily working hours and the compliance with the daily and weekly maximum working hours within a six months period are verifiable and can be reviewed by the responsible authorities.

System for recording working hours must be used by employees

Academics in legal writing controversially discussed whether it might not be sufficient for the employer to provide a system for the recording of working time, but leave it to the employees’ decision whether they want to use the system or not. The Federal Labour Court clearly rejects this expectation and emphasises that the system for recording of working hours must be used. Providing the system for voluntary use is not admissible.

Board members, managing directors (Geschäftsführer) and senior executive employees are excluded

Employees to whom the Working Time Act does not apply are excluded from the obligation to record working hours. In addition to managing directors and board members, these are in particular senior executive employees within the meaning of the Works Constitution Act, i.e. very roughly the management level that directly reports to the board and has far reaching responsibilities for the business.

Discretion in the design of the time recording system: Electronic time recording not mandatory and delegation to employees possible

The Federal Labour Court leaves the employer some discretion in the design of an "objective, reliable and accessible system for the recording of working time", until the legislator will have become active. In exercising its discretion, the employer must above all take into account the particularities of the respective areas of activity of the employees concerned and the peculiarities of the enterprise, in particular its size. The recording of working time does not necessarily need to be carried out electronically. Rather, depending on the activity and the enterprise, records in paper form may suffice. Employers may continue to delegate the recording of the working hours to the employees.

Health protection has priority over economic considerations

The Federal Labour Court emphasises that the system for the recording of working time must serve the purpose to improve the safety and health protection of employees. This objective must not be subordinated to purely economic considerations. As a result, an electronic time recording system will in general need to be implemented. Alternatives to an electronic system may only be considered if electronic time recording is not practicable due to the activities performed by employees and the nature of the business. This will hardly apply to computer workstations and, in view of the advancing digitalisation of working life, manual recording will not be appropriate in most other cases either.

Co-determination rights of the works council in the design of the system

If a works council has been established, it has a co-determination right regarding the design of the system for the recording working hours. This means that a works agreement must be concluded with the works council which specifies the design of the system and its use by employees. In practice, the works agreement will also address the protection of employee related data.

Summary

Since the resolution of the Federal Labour Court applies immediately, employers cannot wait for the legislator to take action, but must introduce a time recording system as soon as possible. Employers have discretion regarding the design of the system. As a rule, however, the introduction of an electronic time recording system will be advisable. The recording of time can be delegated to the employees, who are, however, obliged to use the system. If there is a works council, its co-determination rights must be observed.

The resolution still allows a trust-based working system where employees are free to determine the position of their working hours themselves in accordance with the restrictions of the Working Time Act. However, the employer can no longer waive the recording of regular working hours and is thus also responsible for checking compliance with the Working Time Act on the basis of the recorded data.