A Spanish trade union (CCOO) has taken a case to the EU’s Court of Justice (CJEU) seeking a judgment declaring a bank to be under an obligation to set up a system for recording the time worked each day by its members of staff.

The union considered that such a system would make it possible to verify compliance with the stipulated working times and the obligation, laid down in Spanish law, to provide union representatives with information on overtime worked each month.

The national court which first heard the case decided that the arguments focused on interpretation of the Working Time Directive (2003/88/EC) and Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work and accordingly referred it to the CJEU.

The EU Court was asked in Case C-55/18 (CCOO v Deutsche Bank) whether it is necessary for the Member States, in order to ensure that the health and safety of workers in the workplace is fully and effectively protected, to make it compulsory for employers to introduce systems to measure the actual duration of the working day and working week.

It has ruled that EU legislation, and in particular the requirements of the Working Time Directive, do make it necessary for Member States to require employers to set up a system enabling the duration of daily working time to be measured.

As always with EU cases, the country of origin is immaterial: the final ruling applies in all 28 Member States.

For full details of Case C-55/18 see http://curia.europa.eu/juris/document/document.jsf?text=&docid=210334&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=3573186.

Comment by BrightHR CEO and HR expert Alan Price

Currently, UK law as set out in the Working Time Regulations requires employers to keep ”adequate” records which show that they comply with the 48-hour average working week for any workers who have not 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 compliance with the maximum working week, daily rest and weekly rest periods.

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 forward. 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.

Last reviewed 16 May 2019