…in order to comply with the requirements of EU law on maximum weekly working time and minimum rest periods.
The Federación de Servicios de Comisiones Obreras, a Spanish trade union, brought a group action against Deutsche Bank, seeking a declaration from the court that the bank was obliged to have a system to record the time worked each day by its workers, in order to ensure compliance with Spanish law requirements on maximum weekly working time and minimum rest periods.
The Spanish National High Court referred two questions to the CJEU. Firstly, the question of whether Spanish law was sufficient to ensure the effectiveness of EU provisions on working time and rest periods. Secondly, whether employers ought to be required to set up systems to record actual daily working time worked by full time employees.
The CJEU found that, where the law of an EU member state does not require employers to measure the duration of time worked, this is liable to render meaningless the rights in Directive 2003/88 to a minimum 11-hour daily rest period, a minimum 24-hour weekly rest period and a maximum average weekly working time of 48 hours.
This was found to be incompatible with the Directive's objective of ensuring workers' health and safety. Therefore, member states must require employers to set up "objective, reliable and accessible" systems to measure the duration of time worked by each worker each day. To do so falls within the general obligation in Directive 89/391 for member states to provide the organisation and means necessary for the protection of the health and safety of workers.
The UK Working Time Regulations require employers to keep adequate records to show that average working time does not exceed 48 hours per week (except for workers who have opted out). There is no specification as to the form of these records, and no records are required to be kept in relation to actual (as opposed to average) working time or rest periods.
According to the CJEU's decision, the Regulations therefore do not effect implement the EU Directive. Of course there is enormous uncertainty as to whether the UK will need to amend the Working Time Regulations given the current position of Brexit. It may well be that after the UK leaves the EU the government feels it unnecessary to amend the regulations to bring them into line with EU law (although that will very much depend on the type of Brexit that occurs).
It is also not clear whether what impact the UK's opt-out of the 48-hour maximum working week will have on the application of the decision in the UK.
Employment tribunals are obliged to interpret UK law so far as possible to be consistent with EU law. There is at least some scope for a disgruntled employee to seek to add to existing claims an argument that their employer is not properly recording their working time, although it is unlikely that any separate liability could arise as a result.
The practical difficulties and costs of developing and implementing such a system would be an issue for many employers. It would also represent an enormous cultural change in some sectors, such as in higher education where academic staff and often operate with very little oversight of their working hours.
Given the current state of uncertainty it would be unsurprising if many employers adopted a “wait-and-see“ approach to these developments, as there is so much uncertainty as to whether this European court decision will have practical effect in the UK.