The end of trust-based working hours? Practical effects of the decision of the BAG dated 13/09/2022

I. The Background

With a judgment from 2019, the ECJ had clearly set the direction: From the Working Hours Directive in conjunction with Art. 31 of the Charter of Fundamental Rights of the European Union (CFR), there is the obligation of the Member States to ensure that employers introduce an “objective, reliable and accessible system that can be used to measure the daily working hours worked by employees”; this follows from the right of employees to effective health protection and compliance with the legally prescribed (weekly and daily) maximum working hours. However, the ECJ had not set a specific deadline for the Member States.

Over three full years, the requirements of the ECJ then remained without any significant practical consequences, with a few exceptions that we will present below on a country-specific basis. And it was probably generally assumed that legislative intervention would be required for the practical implementation of the judgment. However, the German Federal Labour Court has now taken the ball directly and formulated directly from existing law specific obligations incumbent on the employer even without legislative measures.

II. The statements of the Federal Labour Court

Based on the findings of the ECJ regarding the content and scope of the CFR and the Working Hours Directive, and in keeping with European Union law, the court has interpreted the Occupational Health and Safety Act (Art. 3), which implemented the Occupational Health and Safety Directive (inter alia), to the effect that the obligation incumbent on the employer set forth therein, the “required” occupational health and safety measures taking into account the health of the employees, also includes an obligation to specifically record all working hours.

III. Community-wide signficance of the decision

Although it is in concrete terms a purely German matter, the significance of the decision should not be underestimated in the other Member States, since the starting point, i.e. the interpretation of national law in accordance with EU law, can be transferred to other countries in each case. This is especially so in this case as it concerns legal norms (specifically: the Occupational Health and Safety Act) that were adopted when implementing EU law (Occupational Health and Safety Directive).

What do the statements of the Federal Labour Court mean? First of all, it is very simple that in fact all employee hours are to be recorded, i.e. regardless of what service is provided as well as how and where it is provided, and not just overtime. In other words, the working hours in the home office and in the field are to be recorded in detail. Whether senior executives or management are also covered by this will presumably depend on whether they are classified as being similar to employees or rather as corporate officers in the individual legal systems. In Germany, senior executives are not covered by the provisions of the Working Hours Act. If other rules apply in other legal systems, a corresponding extension to senior executives is also quite conceivable. This does not seem to be excluded in view of the at least indirect argumentative recourse to the CFR for future developments.

What does this mean for models of trust-based working hours? These are certainly not overridden. However, it is necessary that the specific working hours (and not just overtime) be meticulously recorded, which in practice will not always be easy to reconcile with the objectives of independent project implementation.

IV. Conclusion

Of course, the decision does not have any direct effect outside Germany. However, the argumentation of the Federal Labour Court can certainly also be transferred to other legal systems, so that elsewhere it is also to be expected that, in view of the widespread inaction of the respective legislators, the courts will take control of the situation and will read the requirements already formulated by the ECJ in 2019 directly from national law (in compliance with the directive). It therefore seems advisable that the companies prepare themselves for the new situation in advance with the help of appropriate legal advice and proactively develop appropriate solutions. Below we provide an overview of the existing situation and any need for adjustment in the various countries of the Schindhelm Alliance.

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Autor: Florian Bünger