Is it necessary for employers to record actual hours worked to fulfil their obligations under the Working Time Directive?
Yes, according to the Advocate General of the European Court of Justice.
Spanish trade unions brought proceedings in the Spanish High Court against Deutsche Bank seeking a declaration that the Bank had an obligation to record the number of hours worked each day by its employees. The Bank used an absence calendar which only recorded absences for annual leave, sick leave, etc. Actual hours worked on a particular day were unrecorded.
The Spanish Court referred the issue to the European Court of Justice (ECJ). The first stage of any ECJ case is an Opinion from the court’s Advocate General.
Advocate General’s Opinion
In his opinion, the Advocate General stated that in order to comply with duties under the Working Time Directive (in relation to maximum weekly working time, rest breaks, daily and weekly rest periods etc.), national law requires employers to set up a system for recording the actual number of hours worked each day for workers who have not expressly agreed to work overtime.
Although not binding on the ECJ, it usually follows the Advocate General’s opinion. If it follows this one, it is likely to mean that the Working Time Regulations do not properly implement the European Directive and employers may have to set up a system to keep more detailed records of their workers’ working time. Currently in the UK under the Working Time Regulations employers must keep records to demonstrate compliance with the 48-hour average working week (for workers who have not opted out) and night work.
Federacion de Servicios de Comisiones Obrera (CCOO) v Deutsche Bank SAE
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