Termination of employee’s contract for working time fraud?

In employment law, working time fraud (Arbeitszeitbetrug) constitutes a serious breach of the contractual obligations and can have far-reaching consequences for employees. It involves deliberately misstating the actual hours worked, either by faking hours worked or by not disclosing absences during working hours. This form of misconduct can not only lead to written warnings, but in serious cases also to instant dismissal. Companies not only view working time fraud as a breach of trust, but also as economic damage, which is why they generally take consistent action against such violations. For the employees concerned, this can result not only in the loss of their job but also in criminal prosecution. In this introduction, we will examine the various aspects and consequences of working time fraud in the context of dismissals – and how employees can defend themselves against a dismissal for working time fraud.

The most important information on the subject: Dismissal for working time fraud

• Definition of working time fraud: Working time fraud refers to the deliberate misrepresentation by the employee of the actual hours worked. Only unpunctuality is not considered working time fraud.
• Action by the employer: The employer is entitled to issue a written warning if working time fraud is established. In principle, dismissal after a written warning for the same offence is not permissible. However, in serious cases, dismissal is possible, and in the case of particularly serious offences, dismissal without notice is not ruled out.
• Criminal consequences: Working time fraud is a criminal offence. The public prosecutor’s office can initiate investigations in such cases.
• Recommendations for affected employees: Employees who are affected by a dismissal should consult a specialist in employment law as soon as possible. The lawyer can examine the possibilities of taking action against the dismissal due to working time fraud or negotiating a severance payment.

Working time fraud – what types of behaviour does it include?

Working time fraud is a serious misconduct that can take many different forms and affect both employers and employees. It involves actions that involve working less than contractually agreed or providing false information about the hours worked. In the following article, we provide a comprehensive overview of what exactly is considered working time fraud and what the consequences can be.

What is working time fraud?

Working time fraud encompasses a variety of violations of agreed working hours that are committed intentionally or deliberately. The main feature is that employees work less than contractually required during their working hours. This can take different forms, such as regular private phone calls during working hours or frequent tardiness.

Contractual obligations regarding working hours

Employers and employees usually agree on a certain number of working hours, often expressed in weekly hours. These working hours may be set out in individual employment contracts or collective agreements. Employees are obliged to perform their work during these fixed hours. If they do not do so to the agreed extent or provide false information about their working hours, this constitutes working time fraud.

Common forms of working time fraud

• Incorrect information about overtime: Employees claim to have worked overtime when they have not.
• Unexcused absence: Employees do not report to work or do not document their absence.
• Late arrival at work: Repeatedly arriving late without making up the missed time.
• Private internet use during working hours: Using the internet for private purposes, even when working from home.
• Private phone calls during working hours: Frequent private phone calls during working hours, even when working from home.
• Unauthorised absence from the workplace: Employees leaving their workplace without prior notification or documentation.
• Incorrect information when recording working hours: Entering hours in which no actual work was done.
• Manipulation of time tracking systems: Technical manipulation or misuse of time tracking devices or systems.
• Excessively long or frequent breaks: Excessively long or frequent break times.
• Declaring break times as working time: Recording break times as working time.
• Incorrect travel times in field service: Incorrect or excessive information about travel times in field service.
• Unprocessed absences: Absences are not processed, although this would be necessary.

Warning due to working time fraud

If an employer discovers working time fraud, they are entitled to issue a written warning to the employee concerned. By taking this action, the employer is asking the employee to correct their behaviour and at the same time pointing out that if it is repeated, there is a risk of dismissal.

Employees have the option of taking action against unjustified warnings, although this is not always advisable or necessary. If they believe that the information in the warning is not true, they can write a counterstatement. This counterstatement is included in the personnel file and allows employees to present their own perspective. Should there be a subsequent dismissal and associated court proceedings, the counterstatement could help to mitigate the negative impression left by the original warning.

Immediate dismissal for working time fraud

Working time fraud can lead to the termination of the employment relationship. Whether one or more written warnings are necessary in advance depends to a large extent on the specific circumstances. Courts are usually very strict in such cases and often do not require a prior written warning. The reason for this is that if working time fraud is confirmed, the employee should know that the employer will not accept such behaviour.

Furthermore, immediate dismissal may also be justified. In this case, the employment relationship is terminated immediately and without warning. Employers can take this drastic measure if, for example, the employee has committed the fraud persistently or in a particularly sophisticated manner over a longer period of time.

Nevertheless, employees often have a good chance of defending themselves against dismissal. The employer must be able to prove the accusation clearly and comprehensively. To avoid the risk of an uncertain and possibly lengthy court case, many companies therefore often opt for a severance payment.

Working time fraud: What is the burden of proof and how are working time violations proven?

Regardless of whether the employer wants to issue a written warning or terminate the contract, they must be able to prove that the employee has worked fewer hours than stated. This evidence is often difficult to provide, especially in the case of flexible working time models such as flexitime or home office. In subsequent court proceedings, witness statements and documents are often crucial. Incorrectly completed time sheets can serve as evidence, and eyewitnesses can prove that the employee arrived at the office late, for example.

There are also other methods of evidence, but there is a risk that they will not be admitted in a lawsuit:

• Software monitoring: One possibility is to install monitoring software on the employee’s computer. However, employers must be careful when doing so. The more extensive the software monitoring, the more likely it is that the court will not accept this evidence. The introduction of such monitoring software should be carefully considered, particularly with the involvement of a works council, if one exists.
• Browsing history: An alternative is to compare the employee’s browser history with their break times. If there is a specific suspicion, the employer may be able to examine the browser history. This method is particularly relevant if no less invasive options for checking working hours are available. The Berlin-Brandenburg Higher Labour Court has recognised this approach in a judgment (5 SA 657/15).

Overall, proving working time violations is a complex challenge that requires careful preservation of evidence and legally sound handling of monitoring methods. Employers should always observe the legal framework in order to secure effective and legally admissible evidence for dismissal due to working time fraud.