Working time recording in the company - What applies now?

On September 13, 2022 (Ref.: 1 ABR 22/21), the Federal Labor Court issued a decision on the recording of working hours that has generated a considerable response. As a result of this decision, many questions have arisen among companies regarding the correct recording of working hours. Not only HR managers, but also consulting lawyers are asking themselves: What applies now? Can there still be trust-based working time in the future? Is my time recording system still legally compliant? The following article is intended to provide an overview of the decision and its impact on practice. Further information can be found on the website of the Federal Ministry of Labor and Social Affairs(here).


1. The decision of the Federal Labor Court of 13.09.2022 (Ref.: 1 ABR 22/21)

In its reasoning, the court does not base the obligation to record working hours on the Working Hours Act (ArbZG) - as one might think - but on an interpretation of Section 3 (2) No. 1 of the Occupational Health and Safety Act (ArbSchG) in conformity with European law.

This legislation reads:

"§ 3 Basic obligations of the employer

(1) The employer shall be obliged to take the necessary occupational health and safety measures, taking into account the circumstances affecting the safety and health of employees at work. He shall review the effectiveness of the measures and, if necessary, adapt them to changing circumstances. In doing so, he must strive to improve the safety and health of employees.

(2) In order to plan and implement the measures referred to in paragraph 1, the employer shall, taking into account the nature of the activities and the number of employees

  1. to ensure appropriate organization and to provide the necessary resources (...)".


For practical purposes, it is not helpful to argue legally against the derivation, even if it is not convincing. Therefore, only the effects and implementation possibilities will be discussed in the following.


2. Working time recording obligation for companies

The Federal Labor Court already considers companies to be obliged to set up a working time recording system. It can be deduced from Section 3 (2) No. 1 ArbSchG when interpreted in conformity with Union law: The employer must introduce and use a system with which he can record and record the beginning and end of daily working time, including overtime (i.e. the duration of working time). This obligation is not exhausted by the mere provision of the system. Rather, the employer must actually record the working time to the extent described above. Since no form is prescribed, electronic time recording or in paper form also remains possible. In addition, time recording can still be delegated to the employees.


3. Company with works council

Somewhat overlooked in all the excitement regarding the obligation to record working hours was the actual statement of the decision: The works council has no right of co-determination with regard to the "whether"ofthe introduction of a working time recording system. This is because the employer is already obligated to do so - as described above - on the basis of legal requirements. However, the works council does have a right of co-determination with regard to the "how" of the working time recording system, i.e. its design. It is possible, however, that this right will be restricted by the expected new legislation.


4. Is trust-based working time still possible?

Yes, trust-based working time is still possible. The reasons for the decision of the Federal Labor Court do not contain any explicit statements on flexible working on a basis of trust. Employees plan their working hours independently. In our opinion, this remains possible. The only change is that working time, including breaks, must be documented in the future.


5. Conclusion

Although companies should put their existing structures for recording working time to the test, they should not panic. In any case, it is advisable to make adjustments to the documentation requirements. In view of the expected new legal regulations, however, this should all be done with a sense of proportion.


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