On 23 January 2024, the Danish Parliament passed bill no. 68 amending the Act on the Implementation of Parts of the Working Time Directive and the Act on the Labour Court and Arbitration Courts, which will enter into force on 1 July 2024. The bill is a consequence of the so-called Deutsche Bank case from the European Court of Justice from 2019 and will introduce an obligation for all employers to register employees’ daily working hours.
Registration of employee working hours
One of the key elements of the amendment law is that employers will be obliged to register the daily working hours of each employee in “an objective, reliable and accessible working time registration system”. The purpose of the registration is to enable the employer to ensure compliance with applicable rules on rest periods, maximum weekly working hours, the 48-hour rule, etc.
The new rules do not address exactly how time registration should be carried out. According to the comments to the bill, employers are free to choose the method for fulfilling the registration requirement. However, it has been confirmed in writing by the Minister of Employment that employees can simply register deviations from the agreed and/or scheduled working hours, and that the bill only requires registration of the employees’ total daily working hours, without specifying the period during which the work was performed. The Ministry of Employment has also stated that there is no requirement to register the start/end time of working hours, but that it is sufficient to state, for example, that a total of 8 hours were worked on the day in question. These relaxations will thus make it possible for employers to fill in employees’ working hours in advance, after which the employee only needs to fill in deviations and approve these.
Du bør som arbejdsgiver allerede nu igangsætte implementeringen af de nye krav til tidsregistrering af medarbejdernes arbejdstid.
However, the system must meet the requirements of being “objective, reliable and accessible”. The requirement for an “objective, reliable and accessible working time recording system” means that you as an employer must, for example, draw up a detailed policy on working time recording that clearly informs your employees about what is and what is not working time, what must be recorded, when and how. Your policy should also state that you as an employer will monitor and check the recorded data to prove compliance with the rules.
In addition, the bill states that the employee must have access to their own information in the time registration system throughout the employment relationship, and the employer must ensure that the registered information is stored for 5 years after the end of the period that forms the basis for the calculation of the employee’s average weekly working hours.
According to the bill’s comments, violation of the duty to register will not directly result in compensation. However, if an employee feels that their rights have been violated due to non-compliance, it could still result in compensation, fines or injunctions for the employer.
Exception for “self-organisers”
The new rules contain an exemption from the requirement to register working hours in relation to the so-called “self-organizers”. The exception must be understood narrowly and, according to the bill, must be understood as employees where the organization of working hours in its entirety must be fully left to the employee or cannot be done in advance at all. The exception could thus apply to certain senior managers who independently organize their working hours. It would also apply to certain experts, experienced attorneys in an employment relationship or academics who have considerable freedom to determine their working time.
The above-mentioned derogation option is subject to the condition that it must be explicitly stated in the relevant employee’s certificate of employment that they are not covered by the Working Hours Act’s rules on daily rest, weekly rest and maximum weekly working hours. Similarly, in the case of “self-organizers”, a specific assessment must be made of each individual employee before applying the exception. Thus, it will not be sufficient for the employer to divide the employees into groups and on this basis determine that entire groups/categories are self-organizers.
Possibility to deviate from the 48-hour rule
The bill also contains a narrow possibility for deviations from the 48-hour rule to be agreed for employees who are covered by on-call duty and who perform functions critical to society. However, this only applies to the part of the labor market covered by collective agreements.
The 48-hour rule, as stated in the EU Working Time Directive, means that an employee’s weekly working time must not exceed 48 hours on average over 4 months.
Conclusion – What should you pay attention to as an employer?
The law comes into force on July 1, 2024, and from this date you will be required to have “an objective, reliable and accessible working time registration system” that documents each employee’s daily working hours in order to comply with the rules on rest periods, maximum weekly working hours, etc. This requirement also means that you as an employer must, among other things, draw up a detailed policy on working time recording.
In addition, it is crucial that employers make sure to implement the new rules into their GDPR processes. This may mean, for example, informing employees about the employer’s recording of working hours, issuing new privacy notices to employees, and in many cases, updating GDPR records.
Tre gode råd til virksomhedsledere i lyset af ændringer i arbejdstidsloven
1. Implementér et objektivt, pålideligt og tilgængeligt arbejdstidsregistreringssystem: Indfør et system, der dokumenterer den daglige arbejdstid for hver enkelt medarbejder, så I kan sikre overholdelse af reglerne om hviletid og maksimal ugentlig arbejdstid. Vær sikker på, at systemet er opbygget i henhold til de nye krav.
2. Udform en klar og tydelig politik om arbejdstidsregistrering: Informér medarbejderne om, hvad der skal registreres, hvornår og hvordan. Inkludér procedurer for godkendelse af tidsregistrering og overvågning af de registrerede data for at sikre overensstemmelse med loven.
3. Implementér de nye regler i virksomhedens GDPR-processer: Sørg for at inkludere registrering af arbejdstid i virksomhedens GDPR-processer. Informér medarbejderne om registrering af arbejdstid, udsted nye privatlivsmeddelelser og opdater GDPR-fortegnelsen.
Three tips for business leaders in light of changes to the Working Hours Act:
1. Implement an objective, reliable and accessible working time recording system: Implement a system that documents the daily working hours of each employee to ensure compliance with the rules on rest periods and maximum weekly working hours. Make sure the system is built according to the new requirements.
2. Create a clear policy on time tracking: inform employees what needs to be recorded, when and how. Include procedures for authorizing time recording and monitoring the recorded data to ensure compliance with the law.
3. implement the new rules in your company’s GDPR processes: Make sure to include working time registration in your company’s GDPR processes. Inform employees about recording working hours, issue new privacy notices and update the GDPR inventory.
Kielberg Advokater A/S recommends
As an employer, you should start implementing the new requirements for time registration of employees’ working hours now, as this will entail a heavy administrative burden for many. In connection with the implementation, it will be relevant to consider issues such as frequency of registration, the employee’s own registration, procedure for approval of time registration, registration of breaks, etc.
Kielberg Advokater is ready to help you ensure that your working time registration system meets the requirements of the new regulations, as well as assist with the legal preparation of the necessary working time policies and employment certificates etc.
