Employers across Europe face differing levels of risks if they fail in their time-recording responsibilities following the ECJ judgment in CCOO v Deutsche Bank in the summer of 2019.

On 14 May 2019, in CCOO v Deutsche Bank, the European Court of Justice ruled that employers must have objective, reliable and accessible systems for recording and measuring the duration of time worked each day by every worker.

Multinational companies face the challenge of considering what, if any, new time-recording systems to introduce across their EU operations. To help understand the differing level of risk across the EU, and identify the priority countries for action, we have drawn up this risk heatmap.

Risk Heatmap

We asked our local experts to rate the strictness of their local time-recording requirements on a scale of 1 to 3. We then asked them to rate the strength of their local enforcement regime. We've added the scores together to build a picture of risk. Countries with no existing specific time-recording requirements and a soft approach to enforcement pose the lowest risk, whereas countries with strict time-recording requirements and strong enforcement regimes pose the highest risk. We also asked about likely changes as a result of the judgment.

The focus of our map is on office-based salaried employees who are considered to be in scope of the Working Time Directive in the country in question. For countries with specific rules that only apply to particular sectors, we asked them to 'score' the technology sector.

Our questions

a). How would you rate the strictness of the existing time recording requirements in your country?

1 – Low (for example no specific or very general requirements).

2 – Medium (for example specific requirements exist but they may not capture all details of working time or may only be triggered if an employee brings a claim).

3 – High (there are already strict time recording requirements in place which are intended to capture all working time and must be operated at all times).

b). How would you rate the strength of your country's enforcement approach to working time issues?

1 – Low (for example low fines, passive approach by regulator, action can only be brought by workers and culturally this is unlikely).

2 – Medium (for example serious sanctions exist and they can sometimes be applied).

3 – High (for example, serious sanctions exist and there is generally a proactive approach to enforcement).

c). What changes do you expect in your country as a result of the ECJ judgment to your time-recording requirements and/or the strength or proactivity?

* In the Netherlands, the rules on working time do not apply to employees earning more than three times the national minimum wage (i.e. those earning more than approximately EUR 59,000 per year).

Further Comments

  • Recent caselaw in Belgium has referred to the European case law, which in one case led to the employer being condemned to pay overtime, as they did not have a time registering system and did not cooperate when asked for proof of hours that were worked/not worked by the employee. Another judge ruled however that, for the time being, there is no general obligation in Belgium to register time so the employer has not committed any fault. Legislation will need to be adapted, but we do not expect changes in the next 12 months. Julie De Maere
  • A new draft bill is expected to be submitted in Greece soon, which will introduce a new digital working hour system and the use of electronic work cards. This measure seeks to keep a complete record of working hours and minimize undeclared and uninsured work, as well as types of falsely declared part-time work. Overtime and overworking will also be recorded. The electronic system will record the time of arrival and departure of employees at real time and automatically transmit the data to the Labour Ministry's ERGANI II system, where the data will be cross-checked with the data reported by the employers. The use of electronic work cards is expected to begin on a pilot basis in large companies such as banks and supermarkets and gradually rolled out to the whole private economy by the end of 2021. Fanila Batsila & Evangelia Patsialou
  • The French government has not made any announcement about this ECJ decision to date and we doubt that this will be considered as a priority in the next months. Guillaume Bordier
  • In Poland, a small change has been introduced in response to the Covid-19 pandemic. If, during the Covid-19 pandemic, the employer instructs an employee to perform work remotely, then the employer may also instruct such an employee to provide a "record of performed tasks", including details of employee's activities, date of their performance and time spent. This obligation may be introduced on all employees working remotely regardless of the working time system applicable to them. This means that it can be imposed on employees whose working hours normally, according to Polish law, are not recorded. Magdalena Skwara
  • German legislation has not yet been updated to introduce a time recording requirement in response to the ECJ case law. However, the Emden Labour Court decided on 20 February 2020 that an employer was obliged to pay overtime compensation because it was in violation of its obligation to establish a time recording system. The court considered that the employer's obligation to establish an objective, reliable and accessible system for the recording of working time resulted from Art. 31 (2) of the EU Charter of Fundamental Rights. However, this is a controversial decision and the prevailing opinion tends to assume that there is no general time recording requirement. At the beginning of 2020, we expected new legislation requiring the recording of working time to be presented, as a draft was supposed to be prepared. This did not happen due to the more important issues surrounding Covid-19 but legislative change is still to be expected. Alexander Ulrich

Compliance with EU Law

We asked our lawyers whether the law in their country complies with the new judgment. Some said yes and some explained that the law does not quite match up to expectations yet. See below for details.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.