20 March 2019
The Advocate General (AG) has given an opinion that even where full time workers have not expressly agreed, individually or collectively, to work overtime, employers should ensure that their actual daily working time is recorded.
The trade union Federación de Servicios de Comisiones Obreras (CCOO) brought a group action against Deutsche Bank in the Spanish National High Court, arguing that the bank was under an obligation to set up a system to record the actual number of hours worked each day by its employees.
Deutsche Bank only recorded holiday and sick leave absences. Actual hours worked on a particular day were not recorded. The Spanish court was not sure whether Spanish law was consistent with EU law.
In his opinion, the AG stated that in order to comply with duties under the Working Time Directive national law must require employers keep records of actual time worked by workers.
Acknowledging that the Directive does not expressly provide for such an obligation, he noted that the absence of a system for measuring the number of hours worked meant that there could be no guarantee that the time limits laid down by the Directive would actually be observed. Workers would not know whether limits on working hours had been exceeded and whether they could exercise their rights.
The AG proposed that the ECJ should rule that European law requires employers put in place a system for recording the actual number of daily hours worked for full-time workers who have not expressly agreed, individually or collectively, to work overtime. Member States would be free to choose the method of recording of the number of hours actually worked each.
As the Advocate General's opinion is not binding, we await the ECJ's decision with interest. In the UK the Working Time Regulations 1998 (WTR) require employers to keep "adequate records" to show compliance of weekly working time and night work limits but not that all hours of work should be recorded. If the ECJ agrees with the Advocate General's opinion there may be a question as to whether the WTR are consistent with the Directive.