We reviewed this case when the an Advocate General of the CJEU gave an opinion on it in February 2019.

A Spanish trade union (CCOO) sought a declaration that a bank was under an obligation to establish a system to record the actual number of hours worked daily by its employees. It argued that the requirement for such a system derived not only from domestic law but also from the EU Charter of Fundamental Rights and the Working Time Directive.

Uncertain as to whether Spanish law was consistent with EU law, the matter was referred to the ECJ.

The Advocate General concluded that the absence of such a system makes it much more difficult for workers to enjoy the protection of the rights conferred on them.

He proposed that the ECJ should rule that both the Charter and the Directive require employers to record the actual number of hours worked each day for full-time workers who have not expressly agreed, individually or collectively, to work overtime. Member states should, however, be free to determine the method of recording hours worked.

The European Court of Justice has now concluded that the AG was correct - employers are obliged to set up a system for measuring actual daily working time for individual workers in order to comply with EU laws:

"59 While it is true that the employer’s responsibility for observance of the rights conferred by Directive 2003/88 cannot be without limits, it remains the case that the law of a Member State that, according to the interpretation given to it by national case-law, does not require the employer to measure the duration of time worked, is liable to render the rights enshrined in Articles 3, 5 and 6(b) of that directive meaningless by failing to ensure, for workers, actual compliance with the right to a limitation on maximum working time and minimum rest periods, and is therefore incompatible with the objective of that directive, in which those minimum requirements are considered to be essential for the protection of workers’ health and safety (see, by analogy, judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 43 and 44).

60 Consequently, in order to ensure the effectiveness of those rights provided for in Directive 2003/88 and of the fundamental right enshrined in Article 31(2) of the Charter, the 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.

61 That conclusion is corroborated by the provisions of Directive 89/391. As is clear from Article 1(2) and (4) and recital 3 of Directive 2003/88 and Article 16(3) of Directive 89/391, the latter directive is fully applicable to matters of minimum daily and weekly rest periods and maximum weekly working time, without prejudice to more stringent and/or specific provisions contained in Directive 2003/88.

62 In that regard, the introduction of an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured falls within the general obligation, for Member States and employers, laid down in Article 4(1) and Article 6(1) of Directive 89/391, to provide the organisation and means necessary for the protection of the safety and health of workers. Moreover, such a system is necessary in order to enable worker representatives, who have a specific responsibility in respect of the protection of the safety and health of workers, to exercise their right, laid down in Article 11(3) of that directive, to ask the employer to take appropriate measures and to submit proposals to it."
http://curia.europa.eu/juris/document/document_print.jsf?docid=214043&text=&dir=&doclang=EN&part=1&occ=first&mode=DOC&pageIndex=0&cid=7740028

Practical Lessons

As John Taggart BL pointed out in his review of the AG's Opinion, Regulation 11 of The Working Time Regulations (NI) 2016 requires employers to keep ‘adequate records’ to prove that weekly working time limits and night work limits are being complied with. Such records should be retained for two years from the date on which they were made.

At present, many employers are likely meet this requirement through existing pay records. However, now that the ECJ has followed the Advocate General’s Opinion, then such a practice is certainly open to challenge, particularly as the Regulations do not cover daily or weekly rest, nor do they specifically require all hours of work to be recorded.

Indeed, although this was a Spanish case, the NI Regulations (and equivalent GB regulations) themselves must be open to challenge and tribunals may be inclined to rule as such, should employers wish to rely on their duties under domestic legislation if challenged.