The Advocate General of the European Court of Justice has issued an Opinion that Member States must require employers to have systems in place to record the actual number of hours worked each day for full-time workers who have not expressly agreed, individually or collectively, to work overtime (CCOO v Deutsche Bank SAE, Case C-55/18)

Background

Article 1 of the Charter of Fundamental Rights of the European Union (Charter) provides for the respect of human dignity and Article 31 of the Charter provides that "every worker has the right to working conditions which respect his or her health, safety and dignity" and 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 aim of the Working Time Directive 2003/88 (WTD) is to lay down minimum requirements to improve the protection of health and safety in the workplace.

The Working Time Regulations 1998 (WTR) implement the WTD into UK law.  Regulation 9 of the WTR requires that an employer shall keep records which are adequate to demonstrate compliance with maximum daily / weekly working time limits and maximum night work undertaken, whilst also requiring that such records are retained for two years from the date on which they are generated.

Under Spanish domestic law (the Estatuto de los Trabajadores, or 'Workers' Statute'), working time shall average no more than 40 hours per week (averaged on an annual basis), there is a maximum working day of 9 hours, which can be increased by a collective bargaining agreement only where the daily rest period of 12 consecutive hours is adhered to and overtime shall not exceed 80 hours per annum, which should be reported to a worker's representative on a monthly basis.

Facts

Spanish trade union, Federación de Servicios de Comisiones Obreras (CCOO) and others, brought a group action against Deutsche Bank SAE (Deutsche Bank) before the National High Court of Spain, seeking a declaration that the bank was obliged to set up a system to record the actual number of hours worked by its employees on a daily basis. 

At the time, Deutsche Bank used an absences calendar, which meant that actual hours worked on a particular day were not recorded. CCOO argued, rather than simply recording days of absence when an employee is on holiday or sick leave, Deutsche Bank was under an obligation to implement a system to record the number of hours worked each day by employees. CCOO argued that this would provide a way of monitoring adherence to working time laws and facilitate the reporting of overtime to a worker's representative. CCOO further argued that such a system was actually required by the Charter and the WTD. 

Deutsche Bank referred to previous Spanish case law which had held it was only necessary to record the working day when overtime is undertaken and had made it clear that there is no general obligation to record daily working time. 

The Spanish High Court stayed the proceedings and referred the matter to the European Court of Justice (ECJ) for a preliminary ruling.

Advocate General Opinion

In the Opinion of Advocate General Pitruzzella (AG), the Charter and WTD must be interpreted as requiring Member States to introduce rules imposing an obligation on employers to set up a system for recording the actual number of hours worked each day for full-time workers who have not expressly agreed, individually or collectively, to work overtime.  

The AG noted that, without such an obligation: 

• there could be no guarantee that the time limits laid down by the WTD would be observed; and 
• workers would be under a greater evidential burden should they wish to bring proceedings under the WTD regarding a purported breach. 

The AG emphasised the inherent weakness of the employee as a party in the employment relationship and urged that the WTD and the Charter should be interpreted "in such a way as to ensure that individuals may fully and effectively enjoy the rights which the directive confers on workers and that any impediment that might in fact restrict or undermine the enjoyment of those rights is eliminated".

Comment

Although the Advocate General’s Opinion is not binding, it is usually followed by the ECJ.  

If the ECJ follows the AG's recommendation, the UK’s WTR may not be compliant with the WTD's requirements.  This is because, whilst Regulation 9 of the WTR requires employers to keep "adequate records" to show whether working time limits and the night work limits are being complied with, this does not cover daily or weekly rest, nor specifically require all hours of work to be recorded.  Also, guidance issued by the Health and Safety Executive states that specific records are not required and that employers may be able to rely on existing records maintained for other purposes, such as pay, in order to meet their obligations under Regulation 9 of the WTR.  

As it stands, the Opinion is not binding and has not been applied by the ECJ.  However, if the ECJ decides to follows the AG’s opinion, there will be an obligation on Member States to ensure that systems are in place to record the actual number of hours worked each day. Although the impact in the UK will depend on where the UK is up to with the Brexit process at the time of the ECJ's decision, it is expected that, at the very least, UK employers would be required to have regard to the ECJ's decision.  As such, employers would be required to introduce systems recording the actual number of hours worked each day and would need to be alive to the potential impact on particular groups of workers, such as those working irregular hours or holding more than one job.

CCOO v Deutsche Bank SAE

This article was written by Rachel Flavell, a member of the Employment team in Leeds.