European court rules that member states must measure employees’ working time


The Court of Justice of the European Union (CJEU) has ruled that European Union (EU) member states must require employers to measure the duration of time worked by each employee, both normal hours and overtime, to ensure staff are not working beyond the legal maximum number of hours, and that they receive stipulated daily and weekly rest periods.

The ruling is based on the case Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, which was heard by Spain’s high court, the Audiencia Nacional. Here, Spanish trade union CCOO brought legal action against financial organisation Deutsche Bank SAE; it argued that the business is obliged to have a system in place that records the time worked each day by employees, so that compliance with stipulated working times can be verified and to ensure that trade union representatives receive information on the amount of overtime worked each month, as required by Spanish national law.

The CCOO further stated that this measuring system aids compliance with the Charter of Fundamental Rights of the European Union and the working time directive; this gives EU-based employees the right to at least four weeks of paid holiday time and ensures that staff do not work for more than 48 hours over the working week.

Deutsche Bank SAE contended that Spanish case law from the Tribunal Supremo does not agree with this application, arguing that Spanish law requires that a record is kept only for overtime hours and that this is communicated to employees and trade union representatives at the end of each month.

The Audiencia Nacional found that this interpretation of national law deprives staff of evidence that could show that they have worked over maximum working limits, and deprives their representatives of the means to verify whether application rules were complied with. The court, therefore, found that Spanish law is now able to ensure the effective compliance with the working time directive or the directive on the health and safety of employees at work.

The case was passed to the CJEU, which released its judgement on 14 May 2019. It stated that the aforementioned EU Charter and directives preclude national law as without a system that measures the daily time worked by employees, it is not possible to reliably determine the number of hours worked, when work was done, or the number of overtime hours worked. This then makes it difficult for employees to demonstrate that their rights, such as minimum daily and weekly rest periods, are being complied with.

The EU court ruled that in order to adhere to the regulations stipulated in both the Charter and the working time directive, member states must require employers operating in their jurisdiction to implement an objective, reliable and accessible system to measure the duration of time worked each day by each employee; member states are able to define the specific arrangements for this system as best fits the sector concerned.

Alan Price, chief executive officer at BrightHR, said: “Currently, the UK laws set out in the Working Time Regulations require employers to keep ‘adequate’ records which show that they comply with the 48-hour average working week for any workers who haven’t opted out, and the limitations on night work.

“This ruling goes even further and says that each member state should have rules in place that require employers to record hours worked each day by each worker, including any overtime hours. This is because, without such a record, the CJEU believes it is difficult to ensure that the maximum working week, daily rest and weekly rest periods are complied with.

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“Even though the UK is in the process of leaving the EU, the CJEU ruling is binding on UK courts and will be applied going forwards. There is the potential, however, that working time rules may be amended once Brexit takes place. As the law on working time records has not yet been changed, employers can decide to start recording all working hours in line with this decision. Without strict rules in place about how to record, it will be up to employers to choose how to do this, whether they do it online, through a clock in or out system, or using paper records.

“Possible issues with this ruling include the recording of hours that are worked by employees outside of their normal working hours; for example, does time spent answering emails on the commute to work, or completing tasks from home after the working day ends, need recording? If so, how can an employer ensure their records are accurate if they are unaware that such work is being carried out? Employers will also need to ensure any flexible working policies in place, such as flexi-time and voluntary overtime, are being operated properly and in line with working time rules.”