Global Compliance Desk – European Union

Impact of European Court of Justice Judgement Regarding Daily Recording of Working Time of Employees in EU Member Countries – 2 years later

In a historic judgment in 2019, the European Court of Justice (ECJ) held that, in order to maintain the health and safety of employees as provided both in the EU Working Time Directive and the Charter of Fundamental Rights, the employers in the European Union must ensure to record the working time of employees each day. The Court specifically mentioned that the EU Member States must require employers to set up “an objective, reliable and accessible system enabling the duration of time worked each day by employees”.

The issue originated in Spain where a case was filed by the Federación de Servicios de Comisiones Obreras (CCOO) against Deutsche Bank SAE, before the National High Court of Spain, concerning the lack of a system for recording the time worked each day by the employees employed by the latter.

The CCOO stated that the Bank is under an obligation, under Article 35(5) of the Workers’ statute to set up a system for recording the time worked each day by its employees, in order to make it possible to verify compliance with, first, the working times and, second, the obligation to provide union representatives with information on overtime worked each month. Deutsche Bank argued and submitted that there is no such obligation to record working hours as provided under Spanish law. 

The National High Court, after hearing both the parties, referred the case to the European Court of Justice (ECJ) for the purpose of a preliminary ruling with the below considerations/doubts:

• The obligation to keep a record as provided in Article 35 of the Worker’s Statute – concerns overtime hours.
• At all the places in the labor legislation, where working time is to be recorded, the Spanish law has provided explicitly for such a requirement, for example in the case of part-time and mobile employees in the merchant navy or rail transport.
• Article 22 of the Working Directive provides for the obligation to maintain a record of the time worked in particular cases, but not an obligation to maintain a record of “normal” working time similar to the legislature of Spain.

European Court of Justice Preliminary Ruling:

Read our initial analysis of the ECJ judgment on working time requirements

The Court held that the employer, in this case, recorded only the overtime hours worked by the employees, as per the common practice in Spain, which in fact does not meet the criteria of the Working Time Directive. The Court also held that “in the absence of a system enabling the duration of time worked each day by each employee to be measured, it is not possible to determine, objectively and reliably, either the number of hours worked and when that work was done, or the number of hours of overtime worked”.

Impact of the ECJ judgment in various member states of European Union

Even after two years, the ECJ judgment is yet to be accepted on a broader scale by the Member States of the EU. Certain jurisdictions already have the requirement in place via national legislation wherein employers are required to have a time recording system, while other states are still in the process of bringing amendments to the national laws in order to be in line with the ECJ decision. The judgment of ECJ makes it clear that employers should be prudent in order to ensure compliance with legal requirements to record the employees’ working time. The Member States shall have to start taking steps and move ahead without waiting for the judgment to be incorporated into the national legislation.

Below we shall look at some of the time recording regulatory provisions and precedents  providing for the registration of working time of employees in the various member states of EU, over the years:

France – In France, employers shall record employees’ working time as per the French labor code (Art. L3243) (Code du Travail). The code requires the daily recording of each employee’s working time in the following cases (a) where there are individualized working hours or differentiated collective working hours within the same department or establishment or (b) employees with a fixed amount of working hours. This has been in practice even before the ECJ judgment took place. The French Supreme Court has relied on the ECJ judgment in various litigation matters especially in cases relating to overtime claims by the employees.

Germany – Germany does not yet have legislation mandating the recording of working hours of the employees. As per the German Working Time Act (Section 16), employers are required to record only the hours worked in excess of the regular working time. The Working time Act makes it obligatory for the employers to “hours worked by an individual employee beyond the normal working hours limit of 8 hours per week and 48 hours per week”.

Sweden – Under Sweden labor code of 1982 (Section 11), employers are not required to maintain recording working hours. However, employers are required to record overtime hours, on-call hours and additional time worked by the employees. 

Belgium – Currently, there is no bill or legislation modifying the laws on working time recording in Belgium. However, on May 22, 2020, the Brussels Labor Court of Appeal in a case related to overtime calculation, explicitly referred to the ECJ judgment and found that there was a lack of an “Objective, reliable and accessible system” on the part of the employer, and hence, the employer was under the obligation to provides the wages for the overtime to the claimant. Post the judgment, Belgian labor courts and Tribunals have time and again relied on the same and have provided that employers shall keep in place a system for recording of working hours.

Interestingly, even before the issue of recording of working hours was taken up by the ECJ, a number of Member States in the European Union such as the Netherlands, Czech Republic, Austria, and Finland already had a provision in place regarding the recording of working hours established either through regulation, precedent or collective agreement.

However, post the ECJ judgment, Spain is one of the Member States in the EU which brought about a change in the labor legislation by passing a decree to the effect, emphasizing the importance of recording of working time and adding a specific provision to the effect in the labor legislation. As per the Royal Decree (8/2019, of March 8), the employers are required to record the employees’ working hours each day including the start and end times of their working time. The employers shall also maintain and keep the record to be available for the purposes of inspection for a period of at least 4 years.

Conclusion

Post the judgment given by the ECJ, various Local and State Courts in the various EU Member States have acknowledged that it should be the employer’s responsibility to record the working hours of employees and establish an “objective, reliable and accessible system”. Certain other jurisdictions are also in the process of bringing changes in the labor legislation making it mandatory to record the working time of the employees*.

Organizations with a hybrid working model can also benefit from such a judgment in a way that first of all, such a working model can help the workforce become more independent, which allows the organization to source talent from any part of the world and with time recording systems, the hybrid model can work significantly better as it would allow each and every entry and edit to be automatically documented and verified through the approval process. Labor compliance can also be easily applied across the working force without much difficulty resulting in compliance with all statutory requirements. 

Hence, it is advisable that the employers do not wait for the incorporation of the ECJ judgment into the national laws and rather take a progressive step and implement various tools and methods to ensure compliance with the requirements for monitoring of working time. Without such systems in place, it would be extremely difficult to ensure compliance with respect to employees’ right to daily working hours limits, breaks, etc. With the advancement in technology and via the help of smart online time tracking applications, it can be made possible to track and record the working hours of employees. Such smart applications can allow employers to track the working time even for employees working in flexible, remote working models, etc from anywhere.

The employers should also keep a close watch on the improvements and modifications in the directive as well as any important rulings given by the local courts’ implementing the judgment of the ECJ.

For more information on the Working time Requirements of various countries please refer to this E-Book published on the Replicon Time & Attendance page –

Regulatory Analysis of Time Recording Requirements Across the Globe