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ECJ ruling requires employers to record daily working time

View profile for Giles Betts
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A recent ruling made by the European Court of Justice has confirmed that employers must record the daily working time of individual workers to meet the terms of the EU Working Time Directive. The Directive lays down maximum limits on weekly working time and provisions for daily and weekly rest to which employees are entitled.

In Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, a Spanish workers’ union sought a declaration that the bank was obliged to establish a method of accurately recording the hours worked daily by its staff. By doing so, this would facilitate checks to be made confirming that working time limits enshrined in Spanish law and collective agreements were honoured. The Spanish court referred the matter to the ECJ to determine whether such an obligation existed under the Directive or the EU Charter of Fundamental Rights.

The ECJ confirmed that working time limits and rest period entitlements were rights granted to all workers by the Charter and underpinned by the Directive. It is the duty of EU member states to ensure that workers benefit from those rights whilst preventing employers from restricting them.

In this case, no system of measuring working time existed, and the ECJ ruled that it was not possible for Deutsche Bank SAE to provide a reliable record of hours worked by their employees and therefore workers’ rights granted under the Charter and Directive were potentially compromised. The ECJ reinforced this point by stating that the establishment of such a system would mutually protect employees and their employers as the hours worked would be accurately recorded and harder to challenge as a result.

The ECJ therefore ruled that EU member states must require employers to set up objective, reliable and accessible working time recording systems. However, it would be at the discretion of the member states as to how these systems structured, taking into account sector-specific requirements.

In the UK, the Working Time Regulations 1998 require employers to maintain ‘adequate records’ relating to weekly working time limits and night work limits. However, the WTR contains no provision for daily or weekly rest or lays down a specific requirement that all hours of work must be recorded. Equally, Health and Safety Executive guidance doesn’t make this requirement, stating instead that it may be possible for employers to comply with their WTR obligations by relying on their existing records maintained for other purposes, such as pay.

In light of the Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE  judgment, it is highly questionable whether the Working Time Regulations 1998 are compliant with the EU Working Time Directive’s requirements. It will be of some interest to see what implications this will have going forward, particularly in the midst of the Brexit process and the uncertainty which currently surrounds it. It may, however, be worth giving some thought now as to how you would record all working time of your staff, if you don’t already do this.

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