Spanish Workers Union brought a group action against Deutsche Bank
The Court of Justice of the European Union (“CJEU”) ruled in Federacian de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE made it clear that member states must require employers to record working hours accurately
In Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (“Deutsche Bank”) a Spanish Workers Union (SWU) brought a group action against Deutsche Bank. The SWU argued that Deutsche Bank should record all of the hours worked by staff. The purpose of this action was to try and get Deutsche Bank to have a system in place that records all hours worked inline with the current legislation.
CJEU ruled that in order to comply with the provisions of the Working Time Directive (“WTD”) on maximum weekly working time and daily and weekly rest, 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". Simply put, member states and employers need to ensure that there is a system in place which is capable of measuring the number of hours worked (objectively and with certainty). More so, it was decided that it was for the relevant member state to define the specific arrangements for implementing such a system. So where does this leave the UK?
At the moment, the UK’s legislation for this is set out in the Working Time Regulations (“WTR”). To recap, the WTR requires employers to “keep adequate records” to show compliance with the 48 hour limit on the average week and the protections for night workers have been complied with. The WTR does not specifically require all hours of work to be measured and recorded. Now, this is slightly problematic, as the ruling in Deutsche Bank decided that each member state should have rules in place that require employers to “record hours worked each day by each worker, including any overtime hours”, (this is because, they decided, without such a record, the CJEU thought that it would be difficult to ensure that the maximum working week, daily rest and weekly rest periods were complied with). So they made it pretty clear that all hours worked needed to be recorded. But it looks as though our current law under the WTR does not fit in with the decision.
Will the ruling in Deutsche Bank still apply even after the UK leaves the European Union?
Even though the UK is currently in the process of leaving the European Union, the ruling of this case will become binding in UK Courts in the near future. However, post Brexit, the position may change again, depending on what is decided…
But, in the short term, this case does appear to impose further obligations on employers in respect of recording working time. Employers should consider the systems that they have in place and whether they fulfil the requirements set out in the Deutsche Bank decision.
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This article was prepared by Savanita Atwal.