Surprisingly, the German Federal Employment Court (BAG) decided on 13 September 2022 that an obligation exists for employers in Germany to comprehensively record employees’ working time (case reference 1 ABR 22/21). For employers, this results in a great deal of uncertainty, as the details of this obligation remain unclear.

The starting point of the case was a works council’s co-determination request demanding that the employer implements an electronic working-time recording system. BAG denied this request based on the argument that, pursuant to section 3, paragraph 2, number 1 of the German Health and Safety Act, there is already an obligation on employers to record working time. Consequently, with an existing legal obligation already in place, there is no room for a works council co-determination on the question of such implementation.

Previously, the obligation to record working time had been discussed following the “time clock” decision of the European Court of Justice (ECJ), dated 14 May 2019 (case reference C-55/19). Our previous alert, dated 13 June 2019, on this ECJ decision can be read here. However, the ECJ decision only imposed an obligation on EU member states to ensure that employers set up an objective, reliable, and accessible system for measuring actual daily working time. Therefore, it has been the predominant position in Germany thus far that there is not yet a legal obligation on employers to comprehensively record working time. Rather, it had been...

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