In the opinion of the Emden Labour Court (ArbG Emden, decision of 20 February 2020 – 2 Ca 94/19), employers are supposedly already obliged to set up an objective, reliable and accessible system for recording working time. However, this case law is neither consistent with the current national legal situation nor with the prevailing opinion, which rejects a direct horizontal third-party effect of the European Working Time Directive and the decisions of the European Court of Justice (ECJ).
The ArbG Emden had to decide on a claim for remuneration of alleged overtime in the abovementioned case. In 2018, the plaintiff employee worked for the defendant as a construction worker for seven weeks at an hourly remuneration of EUR 13.00 gross. In return, the defendant paid the plaintiff remuneration based on 183 hours worked. The plaintiff claimed that he had actually worked 195.05 hours for the defendant and claimed the difference in remuneration. There was no system for recording working hours in the employer’s company.
2. Principles on the Burden of Proof and Demonstration in Overtime Litigation
If the employee claims that he has worked overtime, he satisfies his burden of proof by stating the days on which he worked, from when to when, or was available for work on the employer’s instructions. However, this regularly poses great challenges to the employee during the process. This is because the employee not only has to list exactly when he has worked which overtime hours, but also has to present and prove for each of these overtime hours that they were caused by the employer.
If the employee succeeds in proving this, the employer, for his part, must provide a substantiated account of the activities, which he has assigned to the employee, and of the periods during which the employee performed them. Otherwise, the hours of work performed by the employee are deemed to have been granted and must be remunerated accordingly.
3. Decision of the ArbG Emden
The ArbG Emden upheld the action for payment and obliged the defendant employer to pay compensation for overtime. According to the Emden ArbG, the employee complied with the burden of proof of the overtime worked. By submitting his own records of working hours, he had shown the times at which he had worked overtime. On the other hand, the documentation submitted by the defendant employer did not indicate which work had been assigned to the employee and when he had actually performed this work.
Furthermore, according to the ArbG Emden, Article 31 para. 2 of the European Charter of Fundamental Rights (Grundrechtecharta – GRC) imposes an obligation on the employer to set up an “objective”, “reliable” and “accessible” system for recording daily working hours. The employer had violated this obligation.
4. Background to the Decision
The background to the decision of the ArbG Emden is the fundamental ruling of the European Court of Justice (ECJ – decision of 14.05.2019 – C-55/18), according to which employers are obliged to record the working time of their employees by means of working time recording systems. This obligation follows from Article 31 para. 2 GRC and the Working Time Directive 2003/88/EC.
5. Evaluation of the Decision / Impact
The argumentation of the ArbG Emden is not convincing. This is particularly because, firstly, the ECJ’s requirements have not yet been implemented in national law. Secondly, a direct horizontal third-party effect of Art. 31 para. 2 GRC is rejected by the prevailing opinion. A final decision of the ECJ on this is lacking. In addition, the ArbG Emden – as already the ECJ – leaves open how the required time recording systems must be designed in order to meet the requirements of the burden of proof.
However, even today – before the implementation of the European requirements by the national legislator – there is already the risk that in the absence of an objective, reliable and accessible system for recording daily working time, the employer will not be able to meet its staggered burden of proof and demonstration for the scope of the working time to be remunerated in the labour court process due to a lack of objective and reliable data. The overtime claimed by the employee can then be regarded as granted and would have to be remunerated.
6. Need for Action for Employers
Nevertheless, employers should already now review their systems for recording working time and, if necessary, adjust them, particularly with regard to compliance with the mandatory provisions of working time law. Such recording is also highly recommended when receiving short-time working benefits. This is because the extent of the loss of working hours and thus the entitlement to receive short-time working compensation must be proven to the Federal Employment Agency.
As usual, we will of course keep you up to date with the latest developments in the legal and regulatory situation.
Dr. Lorenz Mitterer Katharina Schlonsak
Specialist Lawyer for Employment Law