Back in our February newsletter we highlighted the Advocate General’s opinion in the case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE which stated that employers are under an obligation to record the actual daily working time of their employees. The ECJ has now affirmed that decision stating that Member States must have in place provisions requiring the maintenance of records of working time, as these are necessary in order for employers to be able to comply with the provisions of the Working Time Directive.
A number of Spanish trade unions brought a group action against Deutsche Bank SAE with the aim of obtaining a declaration that there is an obligation on the Bank to set up a system which records the actual number of hours worked daily and makes it possible to check that the working times laid down in legislation and collective agreements are properly adhered to.
The Bank only had in place an absence management system, which enabled whole-day absences to be recorded, such as holidays or other leave, without measuring the duration of time worked by each worker or the number of overtime hours worked.
The case raised issues in respect of how the provision for minimum periods of daily rest (11 consecutive hours per 24-hour period) and of weekly rest (24 hours per period of seven days), as well as an upper limit of 48 hours for the average working time for each seven-day period, including overtime could be monitored.
The ECJ ruled that, in order to ensure that an employer was able to demonstrate compliance with these rights under the Working Time Directive, employers are obliged to introduce “an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured” .
Regulation 9 of the Working Time Regulations 1998 requires employers to keep “adequate records” to show compliance with the 48-hour limit on the average working week and protection for night workers. However, it does not specifically require all daily hours of work to be measured and recorded. This judgment now casts doubt on whether the records under regulation 9 are sufficient.
WHAT SHOULD EMPLOYERS DO NOW?
The ECJ’s decision in this case imposes additional obligations on employers in relation to recording working time over and above the current requirement under the Working Time Regulations 1998.
In order to demonstrate compliance with rest periods and average working time limits employers should consider maintaining more detailed records of working time for all workers as they may be subject to greater scrutiny by the tribunals, and potentially the Health & Safety Executive, going forward. This will be particularly the case for employers where compliance with the limits on daily and weekly hours worked may not be able to be presumed from their opening hours.
WILL BREXIT MAKE A DIFFERENCE?
The current deadline for the UK’s exit from the European Union is 31 October 2019. In due course therefore, the UK may be able to diverge from EU law and, given the relatively limited record keeping obligations under the Working Time Regulations 1998 at present, it may be that the record keeping requirements prescribed by the ECJ in this judgment will be relaxed in the UK. However, the judgment is binding on the UK now as a current member state and employers need to be mindful of this increased record keeping obligation.
If you have any queries in relation to the above or in general please contact our Employment Team who will be happy to help.