Until a decision of the Federal Labour Court (Bundesarbeitsgericht, BAG) of 13.9.2022, the principle of so-called trust-based working time generally applied in Germany, with exceptions. The parties simply trusted - unless otherwise agreed - that the employee would independently complete the contractually agreed working time. A general recording of working time and breaks was not prescribed; only overtime and work on Sundays and public holidays had to be documented by law.

Already in May 2019, the European Court of Justice ruled that companies in the EU must record all working hours of their employees in the future. So far, however, legislators in Germany have not yet transposed the ruling into national law.

The German Supreme Labour Court (1 ABR 22/21) now interprets Section 3(2)(1) of the Labour Protection Act as obliging employers to introduce a system to record the hours worked by employees. This applies regardless of whether a works council has been elected in a company.

The decision has considerable significance wherever time recording systems are not used. It is to be expected that employees who will claim overtime pay will now be able to rely on this decision and that the employer will be in considerable need of proof if it has not yet introduced such a system.

The BAG has thus relativised the significance of one of its earlier decisions of 4 May 2022 (5 AZR 359/21): The BAG had stated here that even in overtime litigation, the burden of presentation and proof generally remains with the employee.