Employers should be keeping records of staff’s actual working time

The Advocate General Pitruzzella in the Court of Justice for the European Union has suggested that in order to comply with the Working Time Directive, employers should have a system of recording time actually worked by staff. Despite there being no specific obligation in the legislation, this is an essential mechanism to allow for the principles of the directive to be adhered to. Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE

The CCOO trade union brought action before the National High Court in Spain against Deutsche Bank seeking a judgment that the bank was under an obligation to record the actual daily working time of its employees. Deutsche Bank used an Absences Calendar which only permitted the recording of absences for full working days and actual hours worked were not recorded. The Trade Union alleged that the system should make it possible to check adherence to the stipulated working times and compliance with the obligation under Spanish law to provide information on monthly overtime worked to Trade Unions, despite there being no obligation in Spanish law to record hours worked.

Article 31(2) of the Charter of Fundamental Rights of the European Union provides that every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

The Trade Union further relied on articles of the Working Time Directive outlining the principals behind the Spanish Legislation and stated that under these principals there should be an obligation for employers to record the actual daily working time of its employees.

Articles of the Working Time Directive relied on:

• Article 3 grants workers a daily rest period of 11 consecutive hours per 24 hour period. 
• Article 5 grants every worker a minimum uninterrupted rest of 24 hours plus the 11 hours’ daily rest per seven day period.
• Article 6 provides the average working time for each seven-day period including overtime does not exceed 48 hours.
• Article 8 states night work should not exceed an average of 8 hours in any 24 hour period.
• Article 22 allows article 6 not to be applied providing the employer keeps up to date records of staff that carry out work outside of Article 6.

The matter was referred by the Spanish Court to Advocate General Pitruzella to ask whether an obligation exists.

Attorney General Pitruzzella held that in the absence of a recording system, there can be no guarantee that time limits laid down by the European Directive will be observed.

Without an appropriate system for measuring normal working hours, workers will find themselves under a greater evidential burden should they bring proceedings if the Working Time Directive is breached. Evidence will not be objective and there will be more reliance on witness evidence. This will significantly reduce the effectiveness of the rights which the Working Time Directive confers on workers, who will essentially be dependent on their employer’s discretion.

An obligation to measure daily working time plays an essential role in compliance with all other obligations in the Working Time Directive such as, limits to the working day, daily rest, limits on the duration of a working week, weekly rest and the possible working of overtime. A system will allow for workers and their employers to review periodically the amount of work completed for remuneration purposes and also protect the health and safety of workers.

The Member States are free to determine what method of recording of actual daily working time is best suited to achieving the effectiveness of the working time provisions under EU law.

It is important to note that National Legislation may exempt some workers outside of the Working Time Regulations and in the UK workers who are excluded include (but are not limited to) transport staff, armed forces and police.

Although the Advocate General’s opinion is not legally binding, it is usually followed by the Court of Justice of the European Union. Employers should consider implementing such a system for those who do not currently have a way to show the actual time their staff work. In order to be compliant with the Working Time Regulations and the EU Working Time Directive, it is essential that a system is in place to give objective evidence of compliance or a breach. This may see more claims under the Working Time Regulations as with such a system breaches will become easier to determine.