24 May, 2019
In Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE earlier this month, the Grand Chamber of the European Court of Justice ("CJEU") decided that in order to ensure compliance with obligations under European Law, employers must keep records of hours worked by employees.
The decision arose out of an action against Deutsche Bank brought in July 2017 by CCOO, a trade union, seeking a judgment declaring the bank to be under an obligation to record the time worked each day by staff to make it possible to identify working time and overtime worked each month. The bank claimed that Spanish domestic law did not create such an obligation. The Spanish National High Court decided to stay the proceedings and to refer the matter to the CJEU for a preliminary ruling.
The CJEU stressed that the right of every worker to a limitation of maximum working hours and to daily and weekly rest periods is a well-established rule of EU social law. The provisions of the Working Time Directive 2003/88 ("the Directive"), in particular Articles 3, 5 and 6, give specific form to that fundamental right and the CJEU stressed that they should not be interpreted restrictively on a national level at the expense of the rights that workers derive from it. Therefore, in addressing the questions referred to the CJEU, it was necessary to interpret the Directive having regard to the importance of the fundamental right of every worker to a limitation on the maximum number of working hours and to daily and weekly rest periods.
The Directive does not establish the specific arrangements by which the Member States must ensure the implementation of the rights that they lay down on a national level. However, the arrangements must not render the rights enshrined in the Directive meaningless. The CJEU held that any national law which does not provide for an obligation to ensure a means of determining of the number of hours worked each day and each week is incapable of guaranteeing the fundamental rights as employers and workers are unable to verify whether those rights are complied with. In the absence of a system enabling the time worked each day by each worker to be measured, there is nothing to ensure that actual compliance with the right to a limitation on maximum working time and minimum rest periods conferred by the Directive is fully guaranteed to workers, since that compliance is left to the discretion of the employer.
Consequently, in order to ensure the effectiveness of those rights, the CJEU held that Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured. This judgment means that Member States must require employers to keep records of hours worked and as a result, domestic legislation in the UK has not properly transposed the Directive into UK law. Changes to the law, or a derogation, will be required to ensure compliance, and the matter will be further complicated by any arrangements on the enforceability of decisions of the CJEU following Brexit. It is likely that any arrangement would ensure that decisions predating any effective date of departure from Europe would remain in force until overturned by domestic courts, but the actual arrangement put into place remains to be seen.