Recently, the European Court of Justice ruled that employers must establish a system to accurately track the working hours of their staff to ensure observance of the EU Working Time Directive.

The case concerned a Spanish bank which did not have a system to register the employees’ working hours. Consequently, the bank could not control the working hours and any overtime. Instead, the bank used a program to register absence, including holiday and other absence. But it was not possible to register the employees’ actual working hours or overtime hours in this program.

In this connection, a number of provisions in the Working Time Directive come into play. These provisions stipulate that the Member States must take the required measures to ensure:

  • A daily minimum rest period of 11 consecutive hours.
  • A weekly day off.
  • That the average working time for each seven day period does not exceed 48 hours, including overtime work.

On the basis of the above, the European Court of Justice had to decide whether the introduction of a system to measure the employees’ daily working hours was a required measure to ensure effective observance of the employees’ rights concerning maximum weekly working hours and the daily and weekly rest periods.

DUTY TO ENSURE A PRACTICAL EFFECT OF THE RIGHTS

The European Court of Justice ruled that national legislation which does not obligate the employers to introduce a system to measure working hours and overtime hours is contrary to the provisions of the Working Time Directive as the required measures to ensure effective observance of the rights have thereby not been taken.

The Working Time Directive does not lay down how the Member States are to ensure implementation of the rights. Instead, it is for each Member State to decide on the required measures to take.

However, according to the European Court of Justice, it must be possible, on an objective and reliable basis, to fix the employees’ working hours and the interval of these hours to control whether the Directive’s provisions are observed. Evidence by way of witnesses, e-mails, use of telephone and computer is not sufficient to efficiently prove the number of hours worked.

The European Court of Justice found that national legislation which does not contain any obligations for the employers to apply a system which makes it possible to calculate the working hours in an objective and reliable way does not guarantee a practical effect of the Directive’s rights.

INTRODUCTION OF A SYSTEM TO REGISTER WORKING HOURS

The European Court of Justice’s ruling is very far-reaching and may result in changed rules, also in Denmark, ordering employers to introduce systems to register working hours. We expect that the future government will discuss the issue with the labour market parties.

Based on the EU ruling, companies should consider whether it will be appropriate to introduce an objective, reliable and accessible system which will make it possible for employers to measure the employees’ daily working hours to verify that the Directive’s rights are observed. In general, employers are not obligated to introduce a system until Danish legislation is introduced in the area. We will of course keep you updated on any legal measures.

However, it is voluntary for Danish employers to introduce systems differentiated based on the company’s needs, and employers may therefore choose to register working hours based on paper registers, computer programs or electronic badges.

contacts

Marianne Lage

Partner

Christian Vesterling

Assistant Attorney