ECJ confirms that employers are required to record the actual daily working time for full-time workers

Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE (C-55/18) EU:C:2019:402

We reported the facts of this case and the Advocate General's Opinion in March's edition of Law at Work.

The ECJ has now followed the AG's Opinion. To comply fully with the EU Working Time Directive (Directive), 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".

In essence, this means that for those full-time employees who have not agreed to work overtime, employers are obliged to set up a system for recording their actual daily working. The ECJ's reasoning is that without such a system it makes it very difficult for employers to reliably determine the number of hours worked by their workers, and so ensure that workers' rights and the Directive's health and safety objectives are not being breached.

The ECJ held that it would be for each Member State to decide on how to implement such a system. In the UK the Working Time Regulations 1998 (Regulations) require employers to keep 'adequate records' to show compliance with weekly working time limits and night work limits. This does not extend to requiring records for daily or weekly rest. Neither do the Regulations specifically require all hours of work to be recorded. It appears that in order to ensure there is no breach of workers' health and safety rights, the Regulations will need to be amended and guidance provided to employers as to arrangements which could be made to implement systems to record actual daily working time.