After the press release on the BAG decision of 13.9.2022 (case reference: 1 ABR 22/21) threw up a number of questions and still failed to shed light on plenty of issues, the reasons for the court’s decision have now also been published. This has provided a clearer picture of the specific requirements for employers and these are outlined below.
Obligation to record working hours even without a new statutory provision
Germany has not yet responded to the requirements stipulated by the ECJ and has not issued any new regulations that would oblige employers to set up an objective, reliable and accessible system for documenting the daily working hours of every single employee. In the opinion of the BAG this is however not even necessary. According to its above-mentioned decision, this obligation to record working hours already exists by virtue of the current occupational health and safety legislation and, therefore, has to be complied with by all employers with immediate effect(!).
Please note: The Federal Ministry of Labour and Social Affairs has however announced that it will soon present a pragmatic proposal for arrangements to record working hours in the German Working Hours Act.
Scope of the obligation to record working hours
The actual daily working hours of the employees have to be recorded, thus, the start and end of the respective workday (incl. overtime) in order to be able to monitor compliance with the maximum working time and the prescribed rest periods. According to the BAG, recording merely the duration of the daily working period would not be sufficient.
The court did not specify just how precisely the recording needs to be carried out. It would make sense here to give preference to digital recording systems, but it would also be possible, for example, to keep paper records. The works council has a co-determination right in respect of working out the arrangements.
It is expressly permitted to delegate the responsibility for recording working hours to the employees themselves. In this respect, it should however be assumed that it will be incumbent on the employer to monitor the situation and, at the very least, to carry out random checks.
Please note: It is yet to be clarified whether or not the obligation to record working hours will also apply to executive staff. It is to be hoped that this and other questions will be settled in the legislation that has been announced.
Legal consequences in the case of infringements
Sanctions for infringements will then also probably be settled on in the legislation that has been announced. Currently, an infringement would not yet immediately result in a fine. The occupational health and safety authorities are merely able to demand corrective actions and only in the event of non-compliance then impose fines.
Please note: No consequences are expected to arise for flexible working time models, trust-based ones or mobile working as a result of the BAG decision. This is because the aim of the obligation is to record working hours merely to comply with the German Working Hours Act that is in any case applicable and not to monitor compliance with contractually stipulated working hours. Therefore, flexible self-determination of working hours would not preclude a documentation requirement. In terms of ‘trust’, however, careful communication with employees will be necessary.