Does an employer need  to keep records of the  actual hours worked to fulfil its obligations under the Working Time Directive?

Yes – according to the CJEU in Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE.

The CCOO is a Spanish trade union which brought a group action against Deutsche Bank, seeking a judgment that the bank was obliged to set up a system to record the actual number of hours worked each day by its employees and make it possible to check that the working times laid down in legislation and collective agreements were properly adhered to. Deutsche Bank used an Absences Calendar – which only permitted the recording of absences for full working days (annual leave, sick leave etc.). Actual hours worked on a particular day were not recorded.

In his opinion, Advocate General Pitruzzella stated that in order to comply with duties under the Working Time Directive, national law must require employers keep records of actual time worked by workers.

In Great Britain, Reg 9 of the Working Time Regulations 1998 requires employers to keep ‘adequate records’ to show whether the weekly working time limits and the night work limits are being complied with. However, it does not cover daily or weekly rest and it does not specifically require all hours of work to be recorded.

Health and Safety Executive guidance states that specific records are not required and that employers may be able to rely on existing records maintained for other purposes, such as pay, in order to meet their Reg 9 obligations.The Advocate General’s opinion is not binding, it is usually followed by the CJEU. if the ECJ adopts the Advocate General’s reasoning, there may be a question over whether UK law complies with the Directive’s requirements.

You can read the judgment here.

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