The ECJ has ruled that Member States are required to impose an obligation on employers to establish an objective, reliable and accessible system that keeps a daily record of the hours worked. The obligation is applicable to all companies and all employees in the European Union.
This case concerned a collective action by a Spanish worker's union, which sought a declaration in the Spanish courts that Deutsche Bank was obliged to establish a system to record the amount of time worked each day.
Spanish law only required a record of overtime worked to be kept and for that information to be communicated to workers and their representatives at the end of each month. The Spanish Court therefore invited the ECJ to confirm whether the necessary steps had been taken to ensure the effectiveness of working time limits and weekly and daily rest periods and whether there was a requirement under the Charter of Fundamental Rights of the European Union (the "Charter") and the Working Time Directive (the "Directive") for Member States to put in place arrangements for recording daily working time.
The ECJ emphasised that the right to a limit on maximum working hours and to daily and weekly rest periods was expressly enshrined in the Charter. The Directive had to be interpreted in a manner which reflected the importance of those fundamental rights. This was important to ensure protection of the health and safety of workers throughout the European Union.
Member States were required to take the "measures necessary" to ensure that workers benefited from minimum daily and weekly rest periods and the limits on average weekly working time. The way in which Member States implemented the Directive's requirements could not render those rights meaningless in circumstances where the worker was the weaker party.
The ECJ held that in the absence of a system for recording daily working time it was not possible to determine objectively and reliably the number of working hours, when that work was done and the number of hours worked beyond normal working hours. It was therefore excessively difficult for workers to enforce their rights. Whilst other sources of evidence like witness statements, emails and mobile phone or computer records might assist workers, the ECJ concluded that they would not enable the daily and weekly working hours to be objectively and reliably established. Workers might be reluctant to give evidence for fear of reprisals whereas a system of recording working time each day provided an effective means of accessing objective and reliable data to enforce their rights. The absence of such systems also compromised the ability of enforcement agencies to intervene where workers' rights were being infringed.
The ECJ therefore concluded that in order to ensure the effectiveness of workers' rights to rest breaks and limits on average weekly working hours, Member States must require employers to have objective, reliable and accessible systems that enable the time worked each day by each worker to be measured. However, Member States have some discretion over the specific requirements for implementing such a system.
The Working Time Regulations 1998 (the "WTR") require employers to keep records which are adequate to show whether the limits on weekly working hours and night work are being complied with and for such records to be retained for a two year period. Failure to comply is a criminal offence but does not give employees a claim. They do not currently contain a requirement to record the daily working hours, with the result that they are not compliant with the decision of the ECJ. It may be that a court could read words into the statute to require records to be kept but enforcement action would need to be taken by the Health and Safety Executive. It may also be that if employees bring claims for failure to allow rest breaks, tribunals would expect employers to be able to demonstrate compliance. Pending legislative changes or further guidance form the HSE, employers may wish to audit their ability to monitor daily working time, This decision applies across the EU and record keeping requirements have already been introduced in Spain and can be expected to follow in other countries.
Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, ECJ