Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE Case C-55/18 ECJ Decision 14 May 2019
by Nick Humphreys & Iris Bajraktari
The Working Time Directive 93/104/EC (consolidated by Directive 2003/88/EC (together, the “Directive”)) has formed part of EU Member States’ domestic law since 1998. It affords extensive rights to workers and imposes certain duties on employers to ensure that these rights are protected. Whether current domestic legislation ensures this is sufficiently done, however, has recently came into question in the Spanish case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE.
The Workers’ Commission in Spain brought a group action against Deutsche Bank (the “Bank”) contending that as a “necessary measure” of
(a) “ensuring that every worker is entitled to a minimum daily rest period off 11 consecutive hours per 24-hour period” (article 3 of the Directive);
(b) guaranteeing that every worker is provided with “a minimum uninterrupted period of 24 hours plus the 11 hours’ daily rest” (article 5 of the Directive); and
(c) safeguarding against workers’ average working time for each 7-day period, including overtime, exceeding 48 hours (article 6(b) of the Directive),
the Bank was under an obligation to set up systems recording the time which its worker members of staff worked each day. This was to ensure that in practice, these working hours were in accordance with the working times stipulated under the Directive and, for the Bank, as means of discharging its obligation to provide overtime information to Trade Union representatives.
The Bank argued that the then current domestic Spanish law required such time recording systems for overtime work only and did not impose a general obligation to record all the time worked by its workers.
The Spanish National High Court referred the following questions to the Court of Justice for a preliminary ruling on:
- Does Spanish national law sufficiently ensure the effectiveness of the limits to working time and of the weekly and the daily rest periods established?
- If not, should employers be required to set up systems whereby the actual daily working time worked by full time employees is recorded?
The ECJ endorsed the Advocate General’s Opinion that, “in the absence of such a [working time recording] system, it is not possible to determine objectively and reliably either the numbers of hours worked by the worker and when that work was done, or the number of hours worked beyond normal working hours as overtime.”
Accordingly, it was held that that the Directive “must be interpreted as precluding a law of a Member State that… does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured.”
Comments and how this may affect UK law
The UK transposed the Directive into domestic law in the form of the Working Time Regulations 1998 (SI 1998/1833) (the “Regulations”). Under the Regulations, reg. 9 specifies that employers must maintain records showing whether the limits on average working time, night work and provision of health and safety assessments are being complied with in the case of each worker.
The ECJ’s decision suggests that the Regulations in their current form do not satisfactorily implement the Directive into UK domestic law – suggesting that it is not enough to have in place systems of recording the average working time and night work, but rather employers may be required to extend these systems to record the actual number of working hours.
It is therefore likely that this point may be litigated in the Employment Tribunals notwithstanding the uncertainty of Brexit.