Will employers be obliged to set up a working time recording system?

In its recent judgment of 14 May 2019, the Court of Justice of the European Union (CJEU) has held that EU Member States must oblige employers to set up a working time recording system for recording the time worked each day by each worker. Such a recording system must be objective, reliable and accessible, but it is up to the Member States to define the specific arrangements for implementing such a system and its particular form.

The facts

The case brought before the CJEU was a Spanish case.

A Spanish union introduced an action against Deutsche Bank before the National High Court of Spain seeking a judgment declaring the bank to be under an obligation to set up a system for recording the time worked each day by the bank’s employees.

The Spanish workers were indeed facing problems in proving the overtime hours they had worked. According to the union, it was necessary to know precisely the hours worked and therefore to register the number of ‘normal’ hours worked to determine whether any overtime had been performed.

Deutsche Bank argued that Spanish law, as interpreted by the Spanish Supreme Court, only required the employer to record overtime work (not ‘normal’ working time). However, the union argued that the obligation to set up a recording system for the time worked each day not only derived from national law but also from EU law (the Charter of Fundamental Rights of the EU and the Working Time Directive).

The National High Court questioned whether the Spanish law was consistent with EU law and asked the CJEU for a preliminary ruling.

The CJEU’s judgment

In its milestone judgment, the CJEU has held that, to comply with EU law, EU Member States must oblige employers by law to set up a system for recording the time worked each day by each worker.

The CJEU’s judgment notes that EU law requires that Member States ensure that maximum working time and minimum rest periods are observed and it states that the only way to ensure compliance with a maximum duration of weekly working time and rest periods is to record working time.

The judgment has declared that the law of a Member State, which does not require the employer to measure the duration of the time worked, is liable to make the rights enshrined in the EU Directive and Charter meaningless, and is therefore incompatible with EU law’s objectives.

Consequently, to ensure the effectiveness of those rights provided for under EU law, the Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured.

It is up to the Member States, in the exercise of their discretion, to define the specific arrangements for implementing such a system and in particular its form; it being understood that the system worked out must be suited to attain the EU Directive’s objectives.

The judgment has added that, if necessary, the Member States may have regard to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings such as, for instance, their size.

The judgment’s impact

Like other Member States, Belgium will have to amend its working time legislation and oblige employers to introduce a working time registration system for all employees and not only for employees with ‘sliding’ working schedules, flexible hours or a flexi-job as is the case today. However, such working time recording does not seem to be compulsory for employees entrusted with a managerial position or a position of trust who are not subjected to the working time legislation.

Regarding how this recording is to be done, the Member States have a wide margin of discretion and it remains to be seen how Belgium will ‘translate’ this obligation into its national legislation and whether or not ‘tailor-made’ arrangements will be worked out depending on the particular characteristics of a sector or company.

Thanks to current technology, a wide range of systems for recording working time are available, such as: paper records (‘time sheets’), computer systems, a ‘time clock’, app, electronic badges, etc.

Although it is now up to the Belgian legislator to implement this judgment into national legislation, it would be prudent for employers to already start registering their employees’ working time in some way as the Belgian courts are in principle required to interpret national legislation in a manner that is consistent with EU law. It cannot be excluded that Belgian courts will, for example, reverse the burden of proof and request employers to now prove actual working hours of the employee rather than requesting the employee to prove the claimed overtime hours worked.

Written by

• Philippe De Wulf

  Partner

• Esther Soetens

  Counsel