The European Court of Justice (ECJ) has held in Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE that in order to ensure compliance with the Working Time Directive (WTD) and the EU Charter of Fundamental Rights (the Charter) Member States must require employers to set up "an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured".
A Spanish workers' union brought a group action against Deutsche Bank SAE seeking 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. This obligation would make it possible for the Bank to verify compliance with the working time limits, as well as providing union representatives with information on the amount of overtime worked each month (a right conferred under Spanish law). The Spanish court referred the question of whether the WTD and/or the Charter imposed such an obligation.
The ECJ emphasised that the right of every worker to a limit on of maximum working hours not only constitutes a particularly important rule of EU social law, but is also enshrined in the Charter. It pointed out that the WTD did not establish the specific arrangements by which Member States must ensure the implementation of these rights, there was an obligation to ensure that workers benefited from the limits on the duration of the average weekly working time laid down in the WTD.
The ECJ concluded that it was necessary to set up a system enabling the time worked by workers each day to be measured, and that this would offer "workers a particularly effective means of easily accessing objective and reliable data" regarding the time worked by them, and would be "capable of facilitating both the proof by those workers of a breach of the rights conferred on them...and also the verification by the competent authorities and national courts of the actual observance of those rights".
Take note: Regulation 9 of the Working Time Regulations (WTR) places a requirement on employers to keep "adequate records" to show whether the weekly working time limits and the night work limits are being complied with. It does not require all hours of work to be recorded. As it stands then, the WTR in their current form are in breach of the WTD.
The decision in the Deutsche Bank case is a problematic one. How will employers go about implementing a system to accurately record the daily working time of their staff? It is clear from the ECJ's decision that the onus will be on the employer to come up with a solution. Meanwhile, with the spectre of Brexit hanging over our heads it's hard to tell what status the WTD will have going forwards, though in the interim it seems clear that the Government will have to amend the WTR to avoid any claims against them for a failure to transpose the WTD properly into UK law.
This article is taken from HR Law – June 2019
