According to the decision of the Court of Justice of the European Union (CJEU) in Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, employers are required by EU law to keep a record of hours worked by their staff to ensure they are abiding by the requirements in the Working Time Directive and the Charter of Fundamental Rights of the European Union.
The CCOO, a Spanish trade union, claimed that Deutsche Bank had breached Spanish law, Article 31(2) of the Charter of Fundamental Rights of the European Union and Articles 3,5,6 and 22 of the Working Time Directive (WTD) by failing to set up a system for recording daily working time by its members of staff. The point of the recording system was firstly to verify compliance with the working times stipulated and, secondly to comply with the requirement to provide union representatives with information on overtime worked each month.
For its part, Deutsche Bank argued that, according to the case law of the Spanish Supreme Court, there was no general duty to keep a record of daily working time.
Section 31(2) of the Charter states that workers have “the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave”.
Article 3 of the WTD provides for a minimum daily rest period of 11 consecutive hours per 24-hour period; Article 5 provides for a minimum uninterrupted rest period of 24 hours plus the 11 hours daily rest per each 7-day period; Article 6 provides for average weekly working time including overtime of 48 hours; Article 22 sets out a number of miscellaneous provisions regarding hours of work and record-keeping.
Decision of Spanish National High Court
The Spanish High Court noted that Spanish law as interpreted by the Supreme Court required employers to keep a record of overtime worked and provide a copy of that record to workers’ representatives. It therefore considered it was doubtful whether Spanish law fully complied with the obligations to ensure compliance with the minimum rest periods and maximum weekly working time laid down by the WTD or the directive on the health and safety of workers at work.
It therefore asked the CJEU to consider whether the WTD and the Charter required employers to set up a system of recording daily working time.
Decision of CJEU
Agreeing with the decision of the Advocate General, the CJEU held that if employers did not have a system in place, they would not be able to decide “objectively and reliably” the number of hours worked by the worker, when that work was done or the number of overtime hours they had worked.
That being so, workers would not be able to ensure that their employers were complying with the rights conferred on them by Article 31(2) of the Charter and Articles 3,5,6 and 22 of the WTD.
Consequently, in order to ensure the effectiveness of the rights provided for in the legislation, member states must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured.
It was, however, for each member state to define the specific arrangements for implementing such a system, in particular the form that it must take, having regard, as necessary, to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings concerning, inter alia, their size.
This judgment clarifies the records employers are required to complete. Regulation 9 of the Working Time Regulations 1998 which implements the WTD in GB law provides that employers are required to keep adequate records to show whether the limits on maximum working time are being complied with. In light of this judgment such records should include a worker’s daily working time.