In the case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, Advocate General Pitruzzella provided his opinion that under the EU Charter of Fundamental Rights and the EU Working Time Directive, employers should keep records of actual daily hours worked for full-time workers who have not expressly agreed to work overtime.

CCOO, a Spanish trade union, brought a group action against Deutsche Bank before the National High Court in Spain, seeking a judgment that the bank was obliged to record the actual number of hours worked daily by its employees.  The bank did not record actual hours worked daily and only recorded absences for full working days.  The Spanish National High Court has referred a number of questions to the European Court of Justice (ECJ).

Advocate General Pitruzzella, a legal advisor who assists the ECJ has provided his opinion.  In particular he noted that if daily working hours are not recorded then there is no guarantee that the weekly working time limits set out in the EU Working Time Directive will be applied correctly.  Currently employees must not exceed a 48 hour working week unless they have opted out. 

The Advocate General also suggested that employers should keep a record of employees’ daily working hours in order to ensure compliance with the limits on duration of the working day, daily and weekly rest periods and working overtime. 

He proposed that the ECJ should require employers to set up a system for recording the actual number of hours worked daily for full-time workers who have not expressly agreed to work overtime.  However, he noted that Member States should be free to determine the method for recording hours worked.

In Great Britain, the Working Time Regulations 1988 (the “Regulations”) implement the EU Working Time Directive into national law.  The Regulations only require employers to keep ‘adequate records’ to demonstrate that the weekly working time limits and the night work time limits are complied with.  The Regulations do not however obligate employers to specifically record daily or weekly rest breaks or actual hours worked. 

If the ECJ adopts the Advocate General’s opinion then it will bring into question whether the Regulations comply with the EU Working Time Directive, and subsequently employers could be subjected to more onerous recording obligations.

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