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CJEU: Employers must record Working Time

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Must an employer keep records of hours worked to fulfil its obligations under the Working Time Directive?

Yes, held the CJEU in Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE.

The CCOO is a trade union in Spain. It brought a group action before the National High Court in Spain against Deutsche Bank. The CCOO sought a declaration that the bank was under an obligation to record the actual daily working time of its employees. Hours worked on a particular day were not recorded.

AG Pitruzzella gave an opinion earlier this year suggesting that the Working Time Directive required employers to keep records of actual time worked. The CJEU has now agreed with the Advocate General.

The court decided that if there was no requirement to keep records, it would be impossible to determine "objectively and reliably either the number of hours worked by the worker [or] when that work was done". The court went on to hold that:

"In those circumstances, it appears to be excessively difficult, if not impossible in practice, for workers to ensure compliance with the rights conferred on them by Article 31(2) of the Charter [of Fundamental Rights maximum working hours] and by [the Working Time Directive], with a view to actually benefiting from the limitation on weekly working time and minimum daily and weekly rest periods provided for by that directive."

This judgment means that, in order to properly transfer the Working Time Directive into national law, a member state must require employers to keep records of hours worked. It appears that the Working Time Regulations, and the Northern Ireland equivalent, have therefore not properly transposed the Directive into UK law. The Government will have to amend both Working Time Regulations (or derogate from the Directive where allowed) to avoid the risk of claims against them for failure to transpose the Directive - if EU law remains in force in the UK of course!

Thanks to Matthew Jackson of 10 KBW for preparing this case summary.