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, advising the Court although not binding it, 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.

Practical Lessons

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, if the ECJ follows 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. Establishing a system to ensure all hours are recorded is good practice and will provide a clear evidential basis if any disputes arise.
http://curia.europa.eu/juris/document/document.jsf;jsessionid=94F15E52D69C97F8DB83802C52E691A3?text=&docid=210334&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=11720434