A recent ruling by the CJEU, in the case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE calls into question whether employers must now keep records of hours worked – for all employees – to fulfil its obligations under the Working Time Directive. The majority of employers only record hours worked for those employees that are hourly paid and/or paid for additional hours worked.
The background
Spanish trade union CCOO brought a group action before the National High Court in Spain against Deutsche Bank because hours worked were not recorded. It claimed that the bank was required to record the daily working time of all employees under the Working Time Directive.
The court decided that keeping records was a fundamental requirement, to ensure that employers could determine “objectively and reliably either the number of hours worked by the worker [or] when that work was done”.
The court went on to hold that:
“In those circumstances, it appears to be excessively difficult, if not impossible in practice, for workers to ensure compliance with the rights conferred on them by Article 31(2) of the Charter [of Fundamental Rights maximum working hours] and by [the Working Time Directive], with a view to actually benefiting from the limitation on weekly working time and minimum daily and weekly rest periods provided for by that directive.”
What does this mean for UK employers?
It remains to be seen whether this ruling will impact on employment law within the UK. As it stands the judgment means that, should the UK wish to properly enshrine the Working Time Directive into national law, employers must be required to keep records of hours worked for all employees. The UK Government would have to amend the Working Time Regulations to avoid the risk of claims against them for failure to transpose the Directive. Of course this will only be applicable should the Brexit process include the continuation of EU law in this field.
This would, ultimately, mean that all employers in the UK would need to record hours worked for every employee, irrespective of their pay or working structure.
