180: Employers must have a system for recording daily working hours for individual workers

In the case of Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, the European Court of Justice (the ECJ) has ruled that the EU Working Time Directive requires employers to set up a system for measuring actual daily working time for individual workers.

The Spanish branch of Deutsche Bank operated a system which recorded when workers were off for a full working day, for example, due to sickness or holiday, but did not record their actual daily working hours. CCOO, a Spanish union, brought a group action seeking a declaration that Deutsche Bank was obliged to have a system to record actual daily hours worked by each member of staff in order to verify compliance with working time limits and to provide the union with overtime information each month. The union claimed that this obligation arose from the EU Charter of Fundamental Rights and the EU Working Time Directive. Deutsche Bank argued that there is no obligation under Spanish law to record all actual daily working hours, only to record overtime worked. The case was referred to the ECJ.

The ECJ noted that the rights to a limit on average weekly working hours and to a rest period are enshrined in EU law, and that it is impossible to determine reliably whether these rights are being complied with unless employers measure actual daily working time. It ruled that member states which do not require employers to have a system in place to record all daily working hours are therefore failing to ensure compliance with the Directive and compromising the objective of protecting workers’ health and safety.

The ECJ’s judgment creates an obligation at EU level for member states to require employers to have an objective and reliable system to record the daily working hours of each worker. This goes much further than the current obligations under the Working Time Regulations 1998, which only require employers to keep ‘adequate’ records to show compliance with weekly working time limits, but do not specifically require all hours of work or rest periods to be recorded. The Health and Safety Executive (HSE), which has responsibility for enforcing these provisions, also states in its guidance that specific records are not required and that employers may rely on existing records such as payroll. This means that the Working Time Regulations do not currently comply with the EU Working Time Directive and should, in theory at least, be amended by the Government. In the current political climate, this is unlikely to be a priority. However, employers should still consider the feasibility of implementing a system to record individual working time in case HSE revises its guidance.