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Working Time: Advocate General recommends employers record the actual number of hours worked by their employees

Employment / 06 February 2019

The Advocate General has given his opinion in the case of CCOO v Deutsche Bank SAE.  If his opinion is followed by the ECJ, it may cast doubt on whether the Working Time Regulations 1998 (“WTR”) comply with the requirements of the Working Time Directive (“WTD”) in relation to an employer’s requirement to keep working time records.


This was a Spanish case in which a trade union (backed by four other unions) argued that Deutsche Bank SAE (“the Bank”) was required under the WTD and the EU Charter of Fundamental Rights to set up a system to record the actual number of hours worked each day by full-time employees (unless they had previously agreed to work overtime).  The Bank had only been using an “absences calendar” which recorded when an employee was on annual leave or sick leave but was not recording actual hours worked.


The Advocate General issued his opinion on 31 January 2019.


In his opinion, the Advocate General proposed that the ECJ make a finding that:

  1. Employers are required to keep a record of the actual number of hours worked each day by full time workers who have not expressly agreed, individually or collectively, to work overtime;
  2. In the absence of such a record, there can be no guarantee that employers are complying with the obligations set out in the Directive and employees may be prevented from enforcing their rights as they will be deprived of essential evidence; and
  3. Member states should clearly set out the obligation to record actual working hours in national law but are free to determine what method of recording is the most effective.


In the UK, the WTR require employers to keep “adequate records” to show whether weekly working time limits and night work limits are being complied with.  The record requirements of the WTR do not cover daily or weekly rests and do not specifically require all hours of work to be recorded.

The ECJ will now need to provide its interpretation of the Advocate General’s opinion.  If the ECJ agrees with it, there may be a question mark over whether the current record keeping obligations in the WTR are compliant.

We will keep you updated with any further developments.


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This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email:

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