Federación de Servicios de Comisiones Obreras (CCOO) v Deutche Bank SAE

Following the Attorney General’s opinion a few months ago, the ECJ has held that Member States must require employers to set up a system for recording their workers’ working time, to ensure the effectiveness of the Working Time Directive.

EU Law

CCOO, a Spanish Trade Union, brought a group action in the Spanish National High Court seeking a judgement that the bank was under an obligation to set up a system for recording the time worked each day by its members of staff in order to make it possible to verify compliance with working time regulations. The obligation derived from Articles 34 and 35 of the Spanish Workers’ Statute, as interpreted under:

  • Article 31(2) of the Charter of Fundamental Rights of the European Union (the Charter)
    • 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.
  • Article 3 of the Working Time Directive (WTD),
    • Daily rest period of 11 consecutive hours per 24 hours
  • Article 5 of the Working Time Directive (WTD)
    • Weekly rest period of 24 hours per each seven-day period
  • Article 6 of the Working Time Directive (WTD)
    • 48 hour limit on working week
  • Article 22 of the Working Time Directive (WTD)
    • Individual opt out of 48 hour limit on working week
  • Articles 4(1), 11(3) and 16(3) of the Health and Safety Directive (HSD)
    • Place health and safety responsibilities on employers, including prevention of occupational risk, without prejudice to more stringent and specific provisions in other Directives.

The ECJ ruled that these articles must be read so as to preclude Member States from interpreting national case-law in such a way as to not require employer to set up a system enabling the duration of time worked each day by each worker to be measured. The right of every worker to a limitation on working hours and to daily and weekly rest periods is not only an EU law of importance but also expressly enshrined in Article 31(2) of the Charter. No provisions in other Directives should be interpreted restrictively.

Member States are required to take necessary measures to ensure every worker is entitled to, and can take, appropriate rest periods and to fix a 48 hour limit on the working week (subject to individual opt-out). In the absence of a system enabling working time to be measured, it is not possible to determine the number of hours worked, when they are worked or how many hours of overtime are worked (the reason for the original claim being presented in the Spanish courts). Relying on the worker to record working hours is not enough as workers may be reluctant to give accurate records. Just recording overtime work is also insufficient as this relies on time worked beforehand being measured and known.

Clocking in

This ruling provides some challenges for employers in the UK. On the basis that the worker is the weaker party and may not report accurate working hours if to do so would cause them detriment, using time sheets filled in by the worker may not be good enough. Employers may need to consider introducing a clocking-in system or using log-in records to identify when an employee is at work. This leads to challenges around workers who are not office based or who don’t use computers for their work.

Many employers may wait for the Working Time Regulations to be amended but as councils are considered Emanations of the State, our employees can rely directly on this ruling. Councils need to consider their working time recording systems as a priority too while considering what type of claims they may face due to current working practices.

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