08 February 2019 #Employment
In an official Opinion on 31st January 2019, the Advocate General has proposed that in order to truly comply with the Working Time Directive EU members must, through national law, require employers to keep actual records of any time worked by their employees.
Back in July 2017 the Federacion de Servicios de Comisiones Oberas (CCOO), a Spanish trade union, brought a group action against Deutsche Bank. The union suggested the bank should be under an obligation to set up a system that actually records the daily working time of its employees. It was in the Union’s opinion that this obligation flowed directly from Spanish labour law that is to be read in conjunction with the Working Time Directive, an EU law that mirrors our own Working Time Regulations that enforces minimum rest periods and maximum weekly working time.
Whilst the Spanish Supreme Court found that there was no such obligation detailed in the Directive, the Advocate General has disagreed. This could impact the CJEU decision. In his Opinion he even highlighted a 2016 survey of the Spanish work force showing that almost 53.7% of overtime was not being recorded, seeing this as a pattern of failure to implement and adopt the Directive correctly. It’s clear he perceives the Directive as the bare minimum: “the worker must be regarded as the weaker party in the employment relationship, and it is therefore necessary to prevent the employer from being in a position to impose on him a restriction of his rights”.
The Opinion goes on to stress a need to “adopt measures that are capable of ensuring the rights are actually enjoyed” and that the “absence of a mechanism for recording working time will significantly reduce the effectiveness of the rights”.
Whilst the Advocate General’s Opinion is not actually binding it is usually followed by the CJEU and could therefore have significant impact in the UK in due course.