Trust-based working time is a flexible working time model in which employees arrange their working time independently — the work result is decisive, not the attendance. Even after the BAG ruling of 2022, trust-based working hours remain permitted, but working hours must now be fully documented. This means that flexibility in time management remains the same, only the recording requirement is added.
What is trust-based working time?
Trust-based working time refers to a working time model that does not focus on being present at work, but on completing agreed tasks and goals. Employers rely on their employees to perform the contractually agreed working time on their own responsibility — without fixed requirements for the start and end of work.
The term is derived from the basic principle: The supervisor does not control when work is done, but relies on the personal responsibility of employees. Nevertheless, the legal framework of the Working Hours Act (ArbZG) continues to apply.
Difference between flexitime and fixed working hours
Trust-based working time differs significantly from other working time models:
Fixed working time: Employers make the start and end of work mandatory (e.g. 9:00 — 17:30). There is no room for manoeuvre for employees.
Flexitime: Employees can start and finish flexibly within a defined time frame, but must comply with core working hours (e.g. attendance requirement 10:00 — 15:00). A time account is often maintained on which plus or minus hours are documented.
Trusted working time: There are no fixed times or core working hours. Employees allocate their working hours completely freely — as long as they perform their duties and comply with legal limits.
Legal bases
The Working Hours Act (ArbZG)
The Working Hours Act also applies to trust-based working hours. It protects workers from overwork and defines clear limits:
- §3 ArbZG — Maximum working time: The working day must not exceed 8 hours. An extension to 10 hours is possible if an average of 8 hours is maintained within 6 months.
- §4 ArbZG — Breaks: A break of at least 30 minutes is required if you work more than 6 hours, and at least 45 minutes if you work more than 9 hours.
- §5 ArbZG — Rest period: There must be at least 11 hours of uninterrupted rest time between two working days.
- §16 ArbZG — Documentation: Working hours that exceed 8 hours a day must be documented and kept for at least 2 years.
These regulations apply regardless of the working time model — even with trust-based working hours.
The BAG ruling 2022 on the time recording requirement
On September 13, 2022, the Federal Labour Court (BAG) caused a stir: In its decision (Ref. 1 ABR 22/21), the court found that employers are required under Section 3 (2) No. 1 of the Occupational Health and Safety Act (ArbSchG) to introduce a system with which all working hours can be recorded.
Important: The BAG does not prescribe how time recording must be carried out. It can be done electronically or manually, and recording can also be delegated to employees.
The ECJ ruling 2019 as a basis
The BAG ruling is based on an earlier decision of the European Court of Justice (ECJ) dated May 14, 2019 (Case C-55/18). The ECJ had ruled that all EU member states must oblige employers to introduce an “objective, reliable and accessible system” for recording working time. The background is the protection of workers under Article 31 (2) of the EU Charter of Fundamental Rights.
Trusted working time despite time recording obligation
What is changing as a result of the BAG ruling?
A common misconception: The BAG ruling had “abolished” trust-based working hours. That is wrong. It is correct:
- Documentation requirement: The start, end and duration of daily working hours must be recorded — not just overtime over 8 hours.
- Employers are responsible for: The obligation to introduce a time recording system lies with the employer.
- Regulatory enforcement: The Hamburg Administrative Court confirmed in August 2024 (file no. 15 K 964/24) that authorities can order the introduction of a time recording system.
What stays the same?
- Free time management: Employees can still decide for themselves when they work — whether early in the morning, late in the evening or with a longer lunch break.
- Focus on results: The focus remains on work results, not on mere attendance.
- Delegation possible: Employers may delegate time recording to employees, but must check on a random basis.
Practical implementation
Trusted working hours and time recording can be combined. In practice, this means:
- Deploy system: Companies must offer a time recording system — whether it's an app, an Excel spreadsheet or a digital time clock.
- Employees themselves record: Employees enter the start, end and breaks of work independently.
- Regular monitoring: Employers check on a random basis whether the legal limits are met.
- storage: The documentation must be kept for at least 2 years.
The flexibility of trust-based working hours is retained — only “control through non-control” is no longer permitted.
Advantages and disadvantages of trust-based working hours
Benefits for employees
- Flexibility: Working hours can be individually adjusted to biorhythms, family obligations or personal productivity phases.
- Work-life balance: Private appointments are easier to integrate.
- Personal responsibility: More autonomy and self-determination in everyday working life.
- Motivation: The employer's trust can be motivating.
Benefits for employers
- Attractiveness: According to a Kienbaum study (2023), 83 percent of the companies surveyed offer trust-based working hours — a relevant factor in the competition for skilled workers.
- Lower administrative burden: Less control means less bureaucracy (but: documentation requirements remain!).
- Focus on results: Focusing on results can increase productivity.
Disadvantages and risks
- Dissolving the line: Without a clear separation between work and leisure, there is a risk of “interested self-harm” — employees work too much out of commitment and endanger their health.
- Unpaid overtime: With trust-based working hours, overtime is often not paid separately, but is offset by shorter days. In practice, this can result in unpaid extra work.
- Difficult performance measurement: It can be difficult for managers to estimate the actual workload.
- Not suitable for all activities: In occupations with fixed shift schedules, customer contact or production processes, trust-based working hours are often not feasible.
Role of the works council
The works council has far-reaching rights of participation in the introduction of trust-based working hours in accordance with Section 87 Works Constitution Act (BetrVG). These include:
- Start and end of daily working hours
- Distribution of working time over weekdays
- Break regulations
Important according to the BAG ruling: The works council has no right of initiative regarding the “whether” of time recording, as this is legally mandatory. However, he can have a say in the “how” — i.e. when designing the time recording system.
Employers should therefore involve the works council at an early stage when trust-based working hours are introduced or a time recording system is implemented.
Frequently asked questions about trust-based working hours
Is trust-based working time still permitted under the BAG ruling in 2022?
Yes, trust-based working hours are still fully permitted. The BAG ruling only requires documentation of working hours. Flexible time management by employees remains unaffected — only the recording requirement is added.
What must be documented during trust-based working hours?
The start, end and duration of daily working hours must be recorded. The system must be objective, reliable and accessible. Employers may delegate recording to employees, but must check on a random basis. The storage obligation is at least 2 years.
What happens with overtime during trust-based working hours?
According to §16 ArbZG, working time of more than 8 hours per day must be documented. With trust-based working hours, overtime is often not paid separately, but is offset by shorter working days. The employment contract should contain a clear regulation on overtime.
What role does the works council play in trust-based working hours?
According to §87 BetrVG, the works council has rights of participation in the distribution of working time. It must be included in the introduction of trust-based working hours. When it comes to the “whether” of time recording, there is no right of initiative (as it is legally mandatory), but the works council can have a say in the “how” of the arrangement.
What is the difference between trust-based working hours and flexitime?
With flexitime, there are fixed core working hours and flexible off-peak hours, often with a time account for plus/ minus hours. With trust-based working hours, there is no core working time — employees are completely free to allocate their time. The focus is on the result of work, not on the hours worked.
For which occupations is trust-based working time suitable?
Trust-based working hours are particularly suitable for knowledge work and creative professions, for managers and experts, as well as for remote work and home office. It is less suitable for shift work, activities with fixed customer contact times or production processes.
What are the advantages and disadvantages of trust-based working hours?
advantages: Flexibility, better work-life balance, more personal responsibility and greater employer attractiveness. Disadvantages: Risk of self-exploitation and dissemination, difficult performance measurement and potentially unpaid overtime. According to Kienbaum, 83 percent of companies offer this model, but only 68.5 percent of employees actually expect it.
Conclusion
Even after the BAG ruling in 2022, trust-based working time remains an attractive working time model for companies and employees. Free time management is still possible — only documentation of working hours is now mandatory. For HR managers, this means: Provide a suitable time recording system, check compliance with legal limits on a random basis and involve the works council in the drafting process.
The combination of willingness to take responsibility employees and clear framework conditions make trust-based working hours a sustainable model — provided that companies pay attention to the health of their employees and avoid a culture of unlimited availability.
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Sources
- Working Hours Act (ArbZG). federal government. https://www.gesetze-im-internet.de/arbzg/
- Occupational Health and Safety Act (ArbSchG), Section 3 Paragraph 2 No. 1 Federal Government. https://www.gesetze-im-internet.de/arbschg/__3.html
- Federal Labour Court, order of 13.09.2022, file no. 1 ABR 22/21.
- European Court of Justice, judgment of 14.05.2019, Case C-55/18.
- Works Constitution Act (BetrVG), §87th Federal Government. https://www.gesetze-im-internet.de/betrvg/__87.html
- Hamburg Administrative Court, judgment of 21.08.2024, file no. 15 K 964/24.
- Kienbaum Benefits Benchmark. Kienbaum Consultants, 2023.
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