In the case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, the European Court of Justice (ECJ) has held that national law should impose an obligation on employers, to set up a system for measuring actual daily working time for individual workers.
This aims to comply with the provisions of the EU Working Time Directive on maximum weekly working time and daily and weekly rest. The Working Time Directive sets minimum requirements which member states must meet in order to improve health and safety in the workplace.
It gives EU workers the right to at least 4 weeks in paid holidays each year, rest breaks, and rest of at least 11 hours in any 24 hours; restricts excessive night work; a day off after a week's work; and provides for a right to work no more than 48 hours per week.
A Spanish trade union brought a group action against the Deutsche Bank SAE. It sought a declaration that the bank was under an obligation to set up a system to record the actual number of hours worked each day by its staff, making it possible to check that the working time limits laid down in national legislation and collective agreements were properly adhered to. The bank did not think that there was such an obligation under Spanish law.
Without a system to measure the duration of time worked each day by each worker, the ECJ considered that it was not possible to determine either the number of hours worked and when that work was done, or the number of hours of overtime worked. This made it excessively difficult for workers to ensure that their rights were complied with.
They said that even though the Directive did not expressly provide for such an obligation, it was “instrumental in and essential to the attainment of the objectives which the directive pursues and to the enjoyment of the rights which it confers on individuals” and that the “absence of a mechanism for recording working time will significantly reduce the effectiveness of the rights which [the Directive] confers on workers”.
The specific arrangements for implementing such a system will depend on the characteristics of the company concerned.
UK law currently requires employers to keep “adequate” records to show whether the weekly working time limits and the night work limits are being complied with. It does not cover daily, or weekly rest and it does not specifically require all hours of work to be recorded.
This means that in view of the ECJ’s opinion, the UK Working Time Regulations 1998 – which implemented the EU Directive - may not comply with it in this respect.
In practice, whether the UK is bound by this decision to do so will depend on whether the UK and EU agree a Brexit deal and, if so, what its terms are. In the meantime, employers may want to consider taking steps to comply with the ECJ’s opinion as a matter of best practice.