The ruling’s impact on employers has been discussed controversially and was unclear. We have reported on this. So far, legal literature has mostly argued that this is merely the EU Member States’ duty to act and that first actions need to be taken by the German legislator (which has not been done so far).
In this context, however, the Emden Labor Court (ArbG) ruled on February 20, 2020 (2 Ca 94/19) that there is already an existing obligation for employers to establish such an objective, reliable and accessible system. Due to the direct applicability of Art. 31 Sec. 2 EU Charter of Fundamental Rights, employers are obliged to record working hours, even without a directive-compliant interpretation of Art. 16 Sec. 2 ArbZG (German Working Hours Act) or an implementation by the German legislator being required.
In the underlying case, the plaintiff was employed by the defendant as a construction worker in 2018 based on an orally concluded employment contract. The subject-matter of the dispute was compensation claims for allegedly performed work the plaintiff asserted after the end of the employment relationship. As evidence he referred to a handwritten overview prepared by the plaintiff as well as “hourly reports”. The defendant contested the temporal scope of the claimed work and relied on the construction diary as evidence, which had been used to record working hours at the beginning and end of work.
Thus, the employer had not sufficiently fulfilled its obligation to record working time. The working time recording system had to be “objective", “reliable” and “accessible”. A system would be deemed “objective" if working hours can be registered and recorded in a manner enabling the employee to objectively demonstrate his or her performed working hours by means of the system. “Reliable" is probably to be understood as meaning that the working time can be reliably documented, and possible manipulations are excluded. Furthermore, the working time recording system is deemed “accessible" to the employee if he or she can inspect the documents and, if necessary, is able to use them as evidence during the proceedings. The employer's construction diary submitted during the proceedings did not fulfil these requirements, so that the hours of work claimed by the employee were deemed to have been granted in procedural terms and he could demand appropriate remuneration
The decision of the Emden Labor Court has significant consequences for employers. This ruling makes clear that working time models must also be adapted in Germany. Admittedly, this is not (yet) mandatory due to the lack of supreme court jurisdiction. However, it is advisable for employers to reconsider the relevant time recording systems or review existing systems based on ECJ case law. According to that, an objective, reliable and accessible system must be put in place that continuously and comprehensibly documents working hours. Such requirement can be met by means of an automatic system or by means of manual records, provided the conditions specified by the ECJ are met.
A reliable recording of working hours plays an important role, especially for the short-time work increasingly implemented during Corona times. The German Federal Employment Agency requires proof of working time showing the daily working hours. These time sheets serve for the comprehensive review of the entitlement to short-time work allowance by the Federal Employment Agency after the end of short-time work. Short-time work allowance is granted subject to later examination, so that errors in time recording must be avoided at all costs.
Companies are therefore well advised to perform a comprehensive review of their working time recording systems.