Do employers have to keep records of daily working time to fulfil their obligations under the Working Time Directive?

Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE C-55/18

Facts

A Spanish trade union brought a group action in the National High Court of Spain against Deutsche Bank. 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 being complied with. (The background is that, under Spanish law, employers only have to keep a monthly record of overtime for each worker. The Bank had an absence calendar that showed whole-day absences but did not record the time worked or overtime. The Court heard evidence that the records were not accurate and 54% of overtime was not being recorded.) The Spanish Court asked the European Court of Justice (ECJ) whether the Working Time Directive (the Directive) and/or the EU Charter of Fundamental Rights imposes such an obligation.

Decision

The ECJ held that Member States are obliged to implement the measures necessary to ensure that workers benefit from the rights laid down in the Directive. Without a system to measure the time worked each day by each worker, it was not possible to determine the number of hours worked, when it was worked, or the number of hours of overtime worked. This made it very difficult for workers to ensure their rights were complied with. The ECJ held that Member States must require employers to set up an objective, reliable and accessible system enabling working time to be measured.

Comment

In the UK, the Working Time Regulations (WTR) require employers to keep "adequate records" to show whether the weekly working time limits and night work limits are being complied with. This obligation can be enforced by the Health and Safety Executive. There is no requirement to record daily or weekly rest and there is no obligation to record all hours of work. The ECJ decision is binding so the Government will have to amend the WTR to avoid the risk of a claim for a failure to implement the Directive properly. Employers will need to think about how to record time worked and how to capture any time not recorded (eg time spent working on commutes, at home, or when not logged on to a system) but can wait until the law is changed before they take any action.