In Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (C-55/18), the CCOO trade union organisation brought a group action against the bank, arguing that the bank should be obliged to set up a system to record the actual daily working time of workers. The CCOO claimed that such a system should be created so that workers are able to check compliance with the Directive.
The CJEU agreed and ruled that such recording is required in order to comply with the provisions on maximum weekly working time, as well as daily and weekly rest periods.
The CJEU went on to clarify that EU Member States must require employers to create an "objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured". However, there is no prescribed method of implementing such a system and Member States have scope to govern the details of how such a system should be implemented.
The CJEU also confirmed that it is acceptable for the characteristics of particular sectors or particular undertakings to be taken into account when implementing time recording systems. This is likely to mean that employers are free to record actual daily working time using whichever method is most suitable for their own business. This may mean adapting an existing clock-in system, or developing a new process for recording the time.
It is already well-established that workers have a right to a limit on their average weekly working hours (subject in the UK to any opt-out signed by the worker), as well as a right to daily and weekly rest periods. However, this decision by the CJEU confirms that without a system in place to measure daily working time, it becomes practically impossible for workers to ensure that they are working hours within limits established by the Directive.
The decision is certainly of interest to UK employers. At present, the Working Time Regulations ("the Regulations") in the UK require employers to simply keep "adequate records" to demonstrate compliance with weekly and night working time limits. However, the Regulations do not stipulate that every hour of work needs to be recorded and they do not cover recording of daily or weekly rest. It is difficult to see how the Regulations as they stand could be interpreted to comply with the Directive.
It is worth noting that Health and Safety Executive Guidance currently states that specific records are not required and that employers may be able to rely on other records maintained for alternative purposes.
Employers should consider the impact of having to keep such records. However, in order to comply with the decision and the Directive, it is likely that the Regulations would have to be amended. With the current state of Brexit, it is questionable what appetite the UK Government would have to make any changes to UK legislation to comply with EU law. It is possible that Courts and Tribunals may take a more purposive approach to the Directive.
This is an important area to watch and we will keep you up-to-date with any developments, whether updated Health and Safety Executive Guidance, new case law or amended legislation.
Authored by Jonathan Barron and Jamie Russell