In a case before the Court of Justice of the European Union (“CJEU”) Advocate General Pitruzzella has given the opinion that employers are obliged to set up a system for recording actual daily working time for their staff. Although it is not a ruling of the CJEU itself, the CJEU often follows the Advocate General’s opinion. If it does, this decision could have consequences for UK employers even in the post Brexit world, as the UK courts will still have regard to decisions of the CJEU even after we leave the EU.
A Spanish trade union bought a group action against a subsidiary of Deutsche Bank seeking a declaration that the bank was under an obligation to put systems in place to record the actual number of hours worked each day by its employees. The aim of the declaration being sought was to make it possible to check that the limits on working times laid down in Spanish legislation and in the collective agreements in place between the trade union and the bank were being complied with. The Spanish court referred certain questions to the CJEU including whether Spanish national law was in breach of EU law by not requiring employers to set up a system of recording actual working time.
Advocate General’s opinion
Before a ruling is made by the CJEU itself one of the Court’s Advocates General is asked to give an opinion on the relevant points. The Advocate General in this case, Advocate General Pitruzzella, gave the opinion that EU law did require employers to put systems in place to record the amount of time their staff actually spend working on the basis that, if this is not done, there can be no guarantee that any relevant limits on working time will actually be observed and it will make it more difficult for workers to enforce their rights.
The obligations of employers based in Great Britain are governed by the Working Time Regulations 1998 (“WTR”), which requires them to keep “adequate records” to show whether the weekly working time limits and night work limits are being complied with. However the WTR does not require all hours of work to be recorded and, in particular there is no requirement to record the amount of daily or weekly rest that workers are taking. Further, there is no requirement for employers to show that their workers are actually taking rest breaks but simply to ensure that they have the opportunity to take them.
However, if the CJEU agrees with the Advocate General’s opinion this will call into question whether the WTR comply with EU law in this respect. It is unlikely that the CJEU will publish its decision on this case before Brexit. Although the UK courts may have regard to that decision, it will not be binding and so it is currently unclear how much of an impact this will have on employers in the UK. This being said, the Advocate General’s reasoning (that failure to collect details of hours actually worked will make it harder for rights to be enforced) is sensible and so if the CJEU follow that reasoning it could be highly persuasive. Further the government has pledged that workers’ rights will ‘keep step’ with those enjoyed by EU workers post-Brexit, which could continue to give decisions of the CJEU on employment issues considerable persuasive force.