Keeping records of all hours worked

Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE

European law obliges employers to establish a system for recording actual daily working time for full-time workers who have not expressly agreed to work overtime according to the Advocate General of the ECJ.

Background

Spanish trade unions brought an action against Deutsche Bank seeking a declaration that the bank was required to set up a system recording the actual number of hours worked each day by its full-time employees. The bank argued that there was no such obligation under Spanish law, only an obligation to record overtime hours. The unions argued that such an obligation arose under the EU Charter of Fundamental Rights and the Working Time Directive (implemented in UK law via the Working Time Regulations 1998 – WTR). The Spanish Court referred the issue to the European Court of Justice (ECJ). The first stage of any ECJ case is an Opinion from the court’s Advocate General.

Advocate General’s Opinion

The Advocate General ruled that the Working Time Directive requires employers to set up a system for recording the actual number of hours worked each day for workers who have not expressly agreed to work overtime. Without such a system, there can be no guarantee that all the limits laid down by the directive (in relation to maximum weekly working time, rest breaks, daily and weekly rest periods etc.) will actually be observed or that workers will be able to exercise their rights. It is however up to member states to determine the required method for such recording.

Link to Opinion: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A62018CN0055

Comment

The opinion of the Advocate General is only advisory and, although followed in most cases, is not legally binding on the ECJ. This however is one to watch - although EU employment rights will continue to apply post-Brexit, only decisions of the ECJ prior to the UK leaving will be binding. If the ECJ follows this Opinion, there may be a question as to whether UK law adequately complies with EU law.

In the UK employers must keep and maintain records that are ‘adequate’ to demonstrate compliance with the 48-hour average working week (for those workers who’ve not opted out) and night work (WTR, reg. 9). There is no requirement to keep records in relation to rest breaks and rest periods. Neither do the WTR specify any particular format for such recording.