In May, the ECJ ruled that all employee working time must be recorded, not just overtime. The employer is responsible for this. He must create the necessary conditions for time recording and at least randomly check that these are also used.
The problem lies in the scope of the term “working time”. The tasks, working hours and not least the self-image of the employees differ fundamentally, for example, between tax consultants and kindergarten teachers or between surgeons and architects. While one employee may find it important to get home as punctually as possible, another may see no problem with overtime, at least as long as it is within a manageable amount.
At its core is the distinction between payment based on time spent at work and payment based on work results achieved. A waitress in a beer garden will want to go home at the end of her shift, even if orders are still open and new guests are just arriving. In contrast, a surgeon in the hospital will certainly not put away the scalpel until the operation is completed.
Therefore, the ruling does not do justice to the life situation and wishes of many employees. It prevents or at least makes more difficult flexible workplace and working time arrangements, such as trust-based work or home office work. In addition, there is a data protection component: The mandatory recording of working hours facilitates the monitoring of the employee.
With its decision, the ECJ does not hold the companies in the member states responsible, but the states themselves. They must now transpose the requirements into national law.
Although a direct effect of the ruling is being discussed – in which case employers would have to introduce a corresponding system for recording working hours immediately – the better arguments speak against such a direct effect, because then the member states would no longer have any leeway in implementing the ruling.
This means that a wave of lawsuits against German employers is not to be feared for the time being. The German regulations on the recording of working time, in particular on the burden of proof, will continue to apply for the time being. Companies should keep an eye on developments – but there is no reason to react quickly for the time being.
Nevertheless, the ruling will not remain without consequences, as it calls on member states to act, including Germany. The focus should be on ensuring as much flexibility as possible, in the interest of employers and employees alike.
There are certainly starting points for this: EU Directive 2003/88, on which the ECJ based its ruling, allows exceptions, for example, if the working time cannot be measured and/or determined in advance due to the special characteristics of the activity. This is likely to be the case in many of today’s professions, as the few examples above already show by way of example. The directive also allows an exception when employees determine their own working hours – in other words, in the case of trust-based working time. There may also be leeway in the definition of working time. The place of residence, i.e. at home or at the workplace, as the sole criterion no longer does justice to a modern understanding of working time.
The EU Commission will certainly deal with the Working Time Directive in the foreseeable future and adapt it – this was already true, but even more so after the ECJ decision. Within this framework, Germany could exert its influence, as could every member state, and work toward more flexible regulation.
© 2023 KPMG Law Rechtsanwaltsgesellschaft mbH, associated with KPMG AG Wirtschaftsprüfungsgesellschaft, a public limited company under German law and a member of the global KPMG organisation of independent member firms affiliated with KPMG International Limited, a Private English Company Limited by Guarantee. All rights reserved. For more details on the structure of KPMG’s global organisation, please visit https://home.kpmg/governance.
KPMG International does not provide services to clients. No member firm is authorised to bind or contract KPMG International or any other member firm to any third party, just as KPMG International is not authorised to bind or contract any other member firm.