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Is there already an obligation to record working time? Part 2

Submitted by Firm:

Judgement of the Labour Court of Emden of 24 September 2020 in Case 2 Ca 144/20

For the second time, the Labour Court (Arbeitsgericht) in Emden had the opportunity to establish a duty – that the Court says already exists - on employees to establish a system for recording working time based on the Judgment of the European Court of Justice (ECJ) of 14 May 2019 on the recording of working time (C-55/18). This time, the Court sought to justify a deviation from the jurisprudence of the Federal Labour Court (Bundesarbeitsgericht, BAG) on the burden of proof in cases involving overtime and the acceptance of overtime.

Facts of the case

The dispute involved the payment of overtime. After the end of her contract, the Claimant asserted her right to a payment of around 1,000 hours of overtime (approx. EUR 20,000 gross) and presented an electronic list of her overtime to support her claim. The employer had not provided any software for employees to use to independently record overtime and claimed in the proceedings that it had not ordered, tolerated or approved any overtime at all. The Respondent also submitted that the Claimant was employed on a trust-based working time basis, so that working time was not monitored. Accordingly, the parties had agreed that the Claimant would keep her working hours in check and could independently decide when to take time off in lieu. The Court in Emden granted the claim almost in full. The parties did not appeal the decision.

The judgment

The Court based its decision on the fact that by presenting her electronic list of overtime hours, the claimant had sufficiently met the burden of proof with respect to overtime. The Respondent had not been able to provide sufficient proof to counter this claim so that the overtime hours claimed were allowed. At its core, the Court submits that the Employer required the overtime claimed by the employee because the employer at least tolerated the overtime. Until now, the Federal Labour Court has required positive knowledge of overtime as a condition for acceptance of overtime. However, the Judgment of the ECJ of the recording of working time changed the burden of proof in cases involving overtime. For this reason, an employer does not need to have positive knowledge of overtime when the employer could have gained knowledge of it by checking the working time records, or at least the employer could have known about it. Following the judgment of the ECJ, the employer should not only measure and record working time, but also control working time. In this respect, national law must be interpreted in line with EU law.

Consequences for practice

The Labour Court in Emden again uses the jurisprudence of the ECJ to support its view that there is a direct obligation to establish a system to record working time. It is doubtful whether this reference makes the approach more correct (see Methfessel and Weck in Der Betrieb (2020), page 1346 and 2527 (only available in German), as well as the BEITEN BURKHARDT Labour Law Newsletter, September 2020, page 6). Numerous legal arguments do not support the view of the Labour Court of Emden and instead first require the transposition of the European provisions by national legislators. This new judgment is therefore unconvincing.

Ultimately, it is a delay caused by German legislators, who have failed to transpose the EU law into national law in almost two years. This is despite the fact that a statutory rule would be of fundamental importance and would prevent labour courts from further seeking to fulfil the EU law provisions.

Our tips

Continue to keep an eye on the developments in the case law and legislation. If possible – where they are not already in place – an expiry period should be agreed for overtime hours to help clearly minimise the financial risk. An objection, in writing, should be made to any overtime that has not been ordered; employees should instead be requested to avoid overtime.

Author: Doreen Methfessel

Please note:

Part 1 of "Is there already an obligation to record working time?" was published in the BEITEN BURKHARDT Labour Law Newsletter, September 2020 edition, page 6 and looks at the judgement of the Labour Court of Emden of 20 February 2020 in Case 2 Ca 94/19.

A similar version of this article appeared in the journal DER BETRIEB (DB 2020, 1346 and 2527).