Employers must properly record all daily working time to be measured

Summary

This issue of the records employers are required to keep in order to comply with obligations under the Working Time Directive was considered in the Spanish case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE. The outcome of this is that employers must keep a record of all hours worked.

Facts

CCOO is a Trade Union in Spain. It brought an action in the National High Court in Spain seeking a declaration that Deutsche Bank SAE was required to set up a system to record all time worked each day by its employees. It argued that such a system would make it possible to verify compliance with the stipulated working times and the obligation to provide union representatives with information on overtime worked each month, laid down in national law and also the Charter of Fundamental Rights of the European Union and the Working Time Directive. The Bank argued that national law did not lay down such an obligation.

The Court recognised the importance of the fundamental right of every worker to a limitation on the maximum number of working hours and to daily and weekly rest periods outlined in the Working Time Directive. Article 6 relates to ‘maximum weekly working time’ and stipulates that all Member States must take all necessary measures to ensure that “the average working time for each seven-day period, including overtime, does not exceed 48 hours”. In addition, article 3 stipulates that “every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period” and article 5 stipulates that “per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3”.

The Court declared that the Working Time Directive, read in the light of the Charter, precludes any national law that does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured.

In the absence of such a system accurately recording the duration of time worked by employees each day, it is not possible to determine, objectively and reliably, either the number of hours worked and when, or the number of hours of overtime worked. This, the Court held, makes it extremely difficult for workers to ensure that their rights are complied with.

Outcome

The outcome of this case was that, in order to ensure the effectiveness of the rights provided for in the Working Time Directive and the Charter of Fundamental Rights of the European Union, a Member States must require employers to set up an “objective, reliable and accessible system” to record the duration of time worked each day by each worker. It will be for each Member States to define the precise arrangements such a system to be put in place.

Implications

While this is a Spanish case, the implications translate into UK law. This judgement means that in order to properly comply with the Working Time Directive and transfer these requirements into national law, all employers must keep a full record of hours worked by employees, including both normal hours and overtime worked.

This could indicate that UK law has not properly implemented the EU Directive and that further correction is required. This, of course, depends on whether EU law remains in force in the UK following Brexit.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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