What are the rules of the EU Working Time Directive?

Effective July 1, 2024 (DK)

All employers are required to implement an objective, reliable, and accessible time-tracking system that makes it possible to measure the daily working hours of each employee.

The purpose is to ensure compliance with the rules on daily (the 11-hour rule) and weekly rest periods (weekly day off), as well as the rules on maximum weekly working hours (the 48-hour rule).

Who is covered by the EU Working Time Directive?

Anyone who is not a “self-organizer” is covered by this directive

And how are “self-organizers” defined?

The employment contract must state—either in the contract itself or in an addendum to the contract—that the Working Time Directive does not apply to the employee in question.

The employee must be exempt from the rules regarding rest periods (the 11-hour rule and the weekly day off)

The European Commission interprets the concept of “self-regulator” narrowly, stating, among other things, that it may include “certain senior executives, experts, and experienced attorneys”; however, this is subject to uncertainty, and ultimately it is up to the courts to determine this.

What needs to be recorded?

The daily working hours of each employee must be recorded.

The Ministry of Employment has confirmed that it is sufficient to record the total daily working hours. According to the Minister of Employment, there is therefore no requirement to record arrival and departure times or breaks.

If an employee chooses to work from home in the evening because they left work early, that work done at home counts toward the total daily working hours. However, it is not necessary to record the specific time of day when the work hours are performed.

Please note: If you fail to record arrival and departure times, we at SmartTID consider this a gray area, and it will not be possible to determine whether the rules regarding the 11-hour rest period have been followed!

Pause recordings?

The Danish Working Environment Authority has issued a draft regulation for public comment; if adopted, it will mean that, starting July 1, 2024, rest periods must be included in the workplace risk assessments (APV) conducted by companies. This means that companies must also be able to report on how they address and prioritize rest period regulations. So this is yet another good reason to record actual breaks taken as part of time tracking, so that this data can be used in the workplace risk assessment process.

Is it sufficient to simply record deviations from the agreed-upon working hours?

Yes, if the agreed-upon working hours are known in advance, it is possible to record only deviations from those agreed-upon working hours.

If an employee is scheduled to work 7.4 hours per day Monday through Friday (37 hours per week), time entries should only be made if there are deviations in the total working hours on individual days during the week.

If an employee works at multiple locations during a workday or in multiple time slots throughout the day, and the total daily working hours remain unchanged, then this does not constitute a deviation that must be recorded separately.

However, if, for example, an employee leaves early one day and works extra hours on another day, two deviations must be recorded.

If working hours vary significantly from day to day, this method is not appropriate, as there is a risk that employees will forget to record deviations from the number of hours they reported, and it also makes it more difficult for managers to verify whether employees are actually fulfilling their obligation to track their hours.

What are the requirements for the time-tracking system?

There is flexibility regarding the design of the time-tracking system, and thus there are no formal requirements for how the system must be set up. It is up to each employer to find the system that best fits the company’s operations. For example, the following systems can be established:

• Tracking work hours using a smartphone app
• Paper or electronic timesheets filled out by the employee
• Stamp clock
• Other electronic solutions

However, the system must be objective, reliable, and accessible. This means that the recorded working hours must match the actual working hours.

In addition, the system must not contain errors that result in the records not accurately reflecting actual working hours.

How long should the information be retained?

The employer must retain the information for five years after the end of the period on which the calculation of the employee's average weekly working hours is based (the 48-hour rule).

Does an employee have the right to receive a copy of their own records?

Yes, the employee must be able to access their own information in the time-tracking system.

Who is responsible for recording working hours?

It makes the most sense for the employee to track their own time.

How often should working hours be recorded?

The Working Hours Act does not contain any rules regarding how often working hours must be recorded, but since the records must be valid, we believe that there should not be too long a gap between time entries. If too much time elapses between entries, there will be a greater risk that the records are unreliable, since the employee may not be able to recall their exact working hours.

However, we encourage you to track your working hours every day, as otherwise you won’t be able to anticipate any potential violations of the 11-hour rule!

Is the employer required to verify the records?

It is the employer’s responsibility to ensure compliance with working time regulations. We therefore recommend that companies regularly review time records and/or use a system that alerts them to time entries indicating a violation of working time regulations (the 48-hour rule, the 11-hour rule, etc.).

SmartTID offers additional features that enable the SmartTID system to alert users and provide information about violations and near-violations in this area.

What happens if time is not tracked, or if there are errors in the tracking?

If an employee submits time records that indicate a violation of working time regulations, the employer must take immediate action to ensure compliance with those regulations.

The Working Hours Act does not provide for a specific penalty for failure to record working hours or for incorrect time records.

However, Dansk Erhverv believes that, depending on the circumstances, inadequate time tracking may be detrimental to the employer’s case if an employee files a claim for compensation due to a violation of the 48-hour rule. If the employee is covered by a collective bargaining agreement that incorporates the 48-hour rule, there is also a risk of a penalty for violating the agreement.

*The above is a summary of many of the laws, regulations, and requirements, as well as the publication “Recording Work Hours: How to Do It” from Dansk Erhverv.

Liability and Exceptions:

SmartTID provides functionality that can document violations of the rules regarding rest periods, the 11-hour rule, and weekly days off, as well as the rules regarding a maximum of 48 hours of average working time over a reference period of 4 or 6 months. (However, this does not apply to mobile workers.)

This functionality reflects SmartTID’s current interpretation of the rules. As the rules are described in greater detail and, if necessary, court rulings are issued regarding their interpretation, we will adjust SmartTID so that its functionality aligns with current practice in this area.

However, it will always be the company’s own responsibility to ensure that records of violations are accurate and to comply with the requirements of the EU Working Time Directive.