Connecting to LinkedIn...



Latest Case Suggests Employers should keep Records of Actual Hours Worked to Comply with Obligations under the Working Time Directive (Directive 2003/88)

The case of Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE [2019] heard at the Court of European Justice of the European Union (“CJEU”) suggests that national law should impose an obligation on employers to keep records of actual time worked by workers.

The Spanish trade union, CCOO, brought action against the Deutsche Bank (“the Bank”) at the National High Court in Spain. It sought a declaration that the Bank was under an obligation to set up a system to record the actual daily working time of its workers. The Bank’s position was that there was no such obligation existing under Spanish law.

The Working Time Directive (“the Directive”) sets minimum requirements which member states must meet in order to improve health and safety in the workplace. Such requirements include, periods of daily rest under Article 3, weekly rest under Article 5 and maximum weekly working time under Article 6. These provisions implement Article 31 of the charter of Fundamental Rights of the European Union (“the Charter”). Paragraph 2 of the Charter provides that “every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave”. The link between the Directive and the Charter mean that member states are responsible for safeguarding the health and safety of workers.

Advocate General Pitruzzella suggests that if an employer does not have a time recording mechanism in place then the rights of workers under the Directive are at risk as the employer would then have discretion as to the workers’ hours actually performed. He concludes that a time recording mechanism is “essential to the attainment of the objectives which the directive pursues and to the enjoyment of the rights which it confers on individuals."

Whilst the Advocate General’s opinion is not binding, it is usually followed by the CJEU. In light of this case, we encourage employers to ensure that an effective time recording mechanism is in place to avoid claims.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

Brabners is a Limited Liability Partnership