In the case of Federacion de Servicios de Comisiones Obreras v Deutsche Bank SAE, a Spanish Trade union brought a group action before the Spanish High Court seeking a declaration that Deutsche Bank was under an obligation to record the daily working time of its employees. However, under Spanish legislation and case law there is no requirement to keep “normal” working time records – there is only a requirement to keep records of monthly overtime hours.

In this case the Spanish High Court expressed doubt as to whether the approach taken in Spain was consistent with EU law, and commented that in any event, to determine overtime worked, it is necessary to know the number of normal hours worked. The Spanish High Court made a referral to the CJEU essentially asking whether the Working Time Directive, Health and Safety at Work Directive, and the Charter of Fundamental Rights of the European Union precluded Member States from having national law which does not require employers to measure daily working time.

The courts decision

The CJEU held:

1. The purpose of the Directives is to ensure the protection of the living and working conditions of workers and their health and safety. As such, Member States are required to ensure workers benefit from minimum daily and weekly rest periods and the limitation upon weekly working time.
2. Workers are the weaker party in the employment relationship and it is necessary to prevent the employer from being in a position to impose a restriction upon their rights.
3. In the absence of a system measuring daily working time it is not possible:
   • to determine objectively and reliably the number of hours worked, when that work was done, and the number of hours which constitute overtime;
   • for workers to ensure compliance with their rights under the Working time directive.
4. Member States must take all the measures necessary to ensure that minimum rest periods are observed and to prevent maximum weekly working time being exceeded.
5. 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.”
6. The effective protection of the safety and health of workers should not be subordinated to purely economic considerations i.e. employers are obliged to up a system to record daily time regardless of the cost.
7. Member States’ national courts must interpret national law in a manner so far as possible to achieve the purpose of the European directives.

Impact for employers in Ireland

Irish employers are already under an obligation to keep records for a period of 3 years to show compliance with working time obligations:

• Records must show in respect of each employee the days and total hours worked in each week; any leave granted each week; and any additional pay received in respect of public holidays.
• Employers are expected to have electronic record keeping facilities or to manually use Form OWT1 or a similar paper format.
• Employers are not required to record rest breaks provided they use an electronic record keeping system, or form OWT1; and employees are informed of their legal entitlements to rest breaks and the procedures by which they can notify their employer if they have been unable to take a break.
• Employers who fail to keep appropriate working time records are guilty of an offence and are liable on summary conviction to a fine of up to €2,500.

In our experience, despite the provisions of the existing legislation outlined above, a number of employers fail to keep appropriate working time records.

While employees are unable to bring a specific claim in relation to a failure to maintain working time records, it is well worth maintaining them (i) to avoid a conviction and fine; and (ii) as otherwise the burden of proof that a particular working time provision has been complied with shifts to the employer.

This CJEU case adds more weight to the obligation to maintain working time records, and may lead to a more vigorous approach to ensuring compliance. If they are not already in place, we recommend that employers take steps to implement an objective, reliable and accessible system to record daily working time.