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Working time law

Trust-based working time: permitted, but not without records

In shortTrust-based working time means employees decide the start, the end and the timing of their working time themselves. It remains permissible, even after the Federal Labour Court order of 13/09/2022. What no longer works is dispensing with records: time has to be recorded there too.
As of: September 20262 min readFederal Labour Court, order of 13/09/2022, 1 ABR 22/21 · Section 3(2) no. 1 ArbSchG, sections 3 to 5 ArbZG
Contents
  1. What trust-based working time is, and what it is not
  2. What changed in 2022
  3. How it works day to day

What trust-based working time is, and what it is not

The term appears in no statute. What is meant is a model in which the employer dispenses with dictating the start and end of daily working time and looks at the result instead. The contractually owed working time remains; only its timing is free.

What trust-based working time has never meant: that the limits of the Working Hours Act fall away. Maximum working time under section 3, rest breaks under section 4 and the eleven hours of rest under section 5 ArbZG apply unchanged.

Nor does it mean that extra work goes unpaid. Anyone regularly working more than contractually agreed has the same claims as in any other model, provided the extra work was ordered, approved or tolerated.

What changed in 2022

Before the Federal Labour Court order of 13 September 2022 (1 ABR 22/21), many businesses dispensed with records entirely under trust-based working time. That no longer works: the duty under section 3(2) no. 1 of the Occupational Safety and Health Act applies regardless of the working time model.

The ministerial draft amending the Working Hours Act expressly holds on to trust-based working time and at the same time requires recording. The two are not mutually exclusive.

In practice less changes than many fear: the freedom over the timing of working time remains, it is just documented. Those who wish can leave the filling in to their employees.

How it works day to day

The recording can be delegated. Employees enter their times themselves, the employer makes sure it happens and looks out for anomalies. The employer remains responsible.

A system that only counts helps little with that. It becomes useful when it reports: eleven hours of rest not observed, break missing, ten hours exceeded. Those very messages replace the supervision that trust-based working time dispenses with.

What preserves trust: the evaluation serves occupational safety and the time account, not punctuality checks. Anyone introducing a system should record that in writing, and in a business with a works council in the works agreement.

  • Delegate the recording, keep the responsibility.
  • Have breaches flagged instead of checking attendance.
  • Record the purpose limitation in writing.
  • Make the balance visible, so extra work does not grow unnoticed.
Further reading:Federal Labour Court, order of 13/09/2022, 1 ABR 22/21Section 3(2) no. 1 ArbSchG, sections 3 to 5 ArbZGMinisterial draft amending the Working Hours Act

This is not legal advice; for a specific case at your workplace you are better off asking someone qualified to give it.

Ugur Aydogan, product development at AMNAU GmbH

Published by: AMNAU GmbH

Editorial responsibility: Ugur Aydogan, Product development.

Last reviewed: 2 September 2026

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Is trust-based working time still permitted?

Yes. Neither the Federal Labour Court order nor the ministerial draft abolishes it. Both only require the working time performed to be recorded. The timing of working time may still be determined by the employees.

Do I have to clock in under trust-based working time?

Not necessarily at a terminal. It is enough for the start, the end and the duration to be recorded, including after the fact on the same day and by the employees themselves. The law prescribes no particular form.

Do I get overtime paid?

If it was ordered, approved or tolerated: yes, under the same rules as otherwise. Trust-based working time changes nothing about the entitlement, it only makes proof harder. With records it becomes easier, and for both sides.

Can the employer abolish trust-based working time unilaterally?

That depends on what it rests on. If it is in the employment contract, an amendment agreement is needed. If it rests on a works agreement, the works council has to be involved. Where it is mere established company practice, the position is more complicated; if in doubt, an employment law review is worthwhile.

Knowing the rules is one thing. Keeping to them is another.

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