The Working Time Directive 2003 contains no time recording or record keeping obligations per se, but requires Member States to take measures necessary to ensure that workers are entitled to their Directive rights to rest breaks, rest periods, annual leave and limits on working hours.
The question of whether proper compliance with the Directive obliges Member States to require employers to keep working time records was considered by the European Court of Justice (ECJ) in the Spanish case of Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE. In its May 2019 judgment, the ECJ held that Member States must require employers to set up 'objective, reliable and accessible systems enabling the duration of time worked each day by each worker to be measured.'
The Court held that without a system enabling daily time worked to be measured, it is not possible to determine objectively and reliably either the number of hours worked by the worker, when their work was done, or the number of hours worked as overtime. This means that it is "excessively difficult, if not impossible in practice" for workers to ensure compliance with their rights. The Court also emphasised that while Member States are free to choose how to ensure proper observation of working time rights, the measures taken must not render the rights meaningless and employers must be prevented from being able to restrict their workers' rights.
In terms of the impact for employers with workers across the EU, it is important to note that the judgment does not impose an immediate obligation to record working time. Rather, it requires Member States to provide for record-keeping in domestic implementing legislation. To comply with the judgment some Member States may have to make changes to existing legislation, or introduce new provisions. For example, in May 2019, the Spanish Government brought into force a new law to require employers to record daily working hours, with financial penalties for non-compliance and in January 2020, the German Federal Ministry of Labour announced that preparations were underway to implement the ECJ ruling.
Although the ECJ decision did not impose an immediate change in record keeping requirements, as further developments are anticipated, many employers are using the ECJ’s decision as a catalyst for a review of their working time recording practices. For employers taking this proactive approach, practical steps to consider will include:
- Assessing how an effective system of recording can implemented across the business to measure rest periods and working time to ensure limits are properly observed.
- Exploring the various technologies that could be used to assist recording.
- Considering how monitoring could work for employees who work flexibly or from home.
- Considering how recording can be undertaken in light of Bring Your Own Device practices.
- Considering the interaction of any recording system with data privacy/GDPR obligations.
- Considering the need for the engagement of employees and/ or employee representatives in determining revised or new systems.
After an initial assessment and planning phase, concrete next steps for an employer to take will depend on the laws already in place in each Member State in which the business operates, and any which are now brought into effect. The country summaries below explain current obligations to record working time in 17 EU Member States and highlight where changes may be required or are being implemented in light of the ECJ’s judgment.