Working time recording & trust-based working time: will it still work in the future?

At the end of 2022, the German Federal Labor Court (Bundesarbeitsgericht – BAG) issued a landmark ruling stating that recording working hours is no longer a “can” but a “must”. Employers must – even now! – record the working hours of their employees. For new-work models based on trust-based working time, this is a disaster! Or? Many employers saw the end of trust-based working time.

But is that really the case? Is it not possible to reconcile the obligation to record working time and trust-based working time in accordance with the law? We will get to the bottom of these questions in this article.

What is trust-based working time?

In principle, trust-based working time is one of several ways of contractually regulating the working time or duration of the work owed in an employment relationship.

In addition to fixed working hours (e.g. shift work), flexitime with core working hours is also common. In modern working time models such as trust-based working time, however, the focus is on the completion of tasks. Employees are free to arrange their working hours as they wish. The yardstick for determining whether the duty to work has been fulfilled here is whether the work to be done has actually been done. The focus is thus not on the time “served” but on the success of the work. It is true that employees generally monitor themselves if a core working time has been agreed. However, if there is no core working time in the trust-based working time model, there is simply no working time to be monitored. Working time recording does not really fit into the “trust-based working time” working time model.

Important! Regardless of how trust-based working time is structured, employers must organize their operations in such a way that legal requirements with regard to working time (e.g., maximum permissible working time limits) are observed and that this is verifiable.

Recording of working time is mandatory!

And yet: Recording of working hours is mandatory! At the end of 2022, the BAG (Federal Labor Court, ruling dated September 13, 2022) ruled that employers must introduce an “objective, reliable and accessible system” “with which the daily working time worked by employees can be measured”.

Separately, the ECJ had already ruled in 2019 that employers must record and document the actual hours worked by employees without gaps. Based on this decision, the EU states are also obliged to regulate this requirement by law. However, this has not yet happened. In the course of 2023, however, there should be a reliable legal regulation in Germany.

The current situation is problematic: according to the Federal Labor Court, there is currently an obligation to record working hours, but this is not very specific. At the same time, a more concrete legal regulation in Germany is pending in the near future. However, it is currently unclear when this will be regulated under federal law.

Thus, the obligation to record working time currently leads to enormous uncertainty with regard to trust-based working time models.

Recording of working time: Confidential working time still possible?

“Prohibited” is currently not trust-based working time – there is only case law that assumes an employer’s obligation to record working time, but no legal basis.

Some voices in labor law consulting are of the opinion that employers basically “only” have to set up a reliable system for measuring daily working time and that it is sufficient to provide employees with a time recording system with which they record their working time.

However, this legal assessment cannot currently be supported by statutory regulations: at present, there are simply no national, i.e. German, statutory regulations on how precisely working time recording must actually be designed and whether responsibility for recording can be delegated – which is unlikely to be the case.

This means that, from a legal point of view, the topic of working time recording and trust-based working time is still, strictly speaking, a gray area. The question of “whether” working time should be recorded has been answered with a resounding “yes” by the European Court of Justice and the Federal Labor Court. Legislators in Germany have not yet implemented this and have not amended the Working Time Act accordingly. As a result, the “how” has not yet been defined in concrete terms.

Keeping an eye on the issue  

Recording working hours is mandatory. How this obligation is to be implemented will be regulated by the legislator in the foreseeable future. It is therefore important above all to keep an eye on the issue.