Deutsche Bank SAE (DB) operated an absence calendar which recorded when its workers were off for a full working day, for example on holiday or sickness leave, however it did not record each worker’s actual daily working hours.
The CCOO, a workers’ union in Spain, brought a group action against DB in the National High Court, seeking a declaration that DB was obliged to have a system to record the actual daily hours worked by each member of staff in order to verify DB’s compliance with national working time limits and to provide the union with overtime information each month.
The union argued that the obligation to set up such a recording system is derived from Spanish statute when interpreted in accordance with Article 31(2) of the EU Charter of Fundamental Rights (the “Charter”) and the EU Working Time Directive (No.2003/88) (the “Directive”).
Under the “Charter” every worker has a right to limit their maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.
DB’s position was that Spanish law does not include an obligation to record all actual daily working hours, only an obligation to record overtime worked. Under EU law, Member States are required to take the necessary steps to ensure that the arrangement chosen to implement the Directive ensures effective compliance with these rights.
The National High Court of Spain referred this case to the ECJ asking it to determine whether there is an obligation under the Directive, in conjunction with the Charter, on Member States to require Employers to have systems in place to measure all actual daily working hours of each worker.
The ECJ considered that without such a system, it is “not possible to determine objectively and reliably” the number of hours worked making it excessively difficult, if not impossible, for workers to ensure compliance with their rights.
Therefore, the ECJ held that a Member State is failing to guarantee the effectiveness of workers’ rights if its national law does not require employers to have a system in place to record all daily working hours. Therefore, this judgment sets an obligation at EU level for Member States to require employers to have an objective and reliable system to record all daily working hours of workers.
In Great Britain, the Working Time Regulations 1998 (WTR) requires employers to keep “adequate records” of weekly working time limits, but it does not specifically require all hours of work or rest periods to be recorded. Additionally, Health and Safety Executive Guidance states that specific records are not required, and employers may rely on existing records, such as pay, in order to meet their obligations under the WTR.
As can be seen above, it is seriously doubtful that the WTR comply with the Directive and as a result, the Government will need to amend the WTR in order to avoid the risk of claims against them for failure to properly implement the Directive into national law.
In order to be compliant with the Directive, and in anticipation of the changes to the WTR, Employers should implement a system to objectively record all their workers’ daily working hours.
We pride ourselves on not only providing legal advice, but also providing practical solutions. As such, we are able to offer Employers our HR Software which enables accurate time-tracking of workers to create a complete and objective record of daily working hours of their workers, ensuring full compliance under EU law.
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