CCOU v Deutsche Bank – Impact for Northern Ireland Employers

What is the likely impact for Northern Ireland employers of the CJEU working time case, Federación de Servicios de Comisiones Obreras, which is CCOO, and that's a Spanish trade union, against Deutsche Bank. And the case reference if you want it, folks, is C55/18.

Seamus: I mean, I think actually in the podcast, either the last one or the previous one to that, we actually were discussing the CCOO, the trade union, in a different capacity. But they are a trade union in Spain and they brought an action against Deutsche Bank within their National High Court in Spain, and what they did was they made a request to the court. And the request was that the bank should be obliged to record the actual working hours and working time of its employees for any particular day.

Now, this mightn't sound anything new to some of our listeners. A lot of people have a timing system anyway where people maybe clock in and clock out and it's recorded what they're doing during the day. But the bank's position was that the domestic law in Spain only required such time recording systems for overtime work and it didn't impose a general obligation to record all the time by its workers. So the bank were saying that they weren't really interested, that they knew what everybody's general hours were. It was stated in their terms and conditions. But they were recording the overtime that they were working instead, and that that was sufficient under the directive.

But, importantly, the court came back . . . and I'm just going to quote what the court said. They said that in the absence of such a working time recording system, that it wasn't possible to determine objectively or reliably either the number of hours worked by a worker and when that work was done, or the number of hours worked beyond the normal working hours as overtime. So the clear direction from the court under the decision is that you do have to record all of the hours that are worked in the day for each employee.

Now, it doesn't give any guidance as to how an employer should go about doing that. The requirement is that that's what it means. So it does mean that for each member-state within the European Union, that for them to comply with the Working Time Directive, and to bring that into their national laws, that they are required to keep the hours of work that are worked by each member of staff.

So I wanted to sort of maybe just take a step back and look at what law we're talking about here. So we are going back to the Working Time Directive. This was a 1993/104 directive and it was consolidated in 2003 under the amended legislation. And the UK transposed that directive then into what we know as our Working Time Regulations 1998 and our Northern Ireland version of that.

Scott: The Northern Ireland version was consolidated into 2016.

Seamus: That's right.

Scott:  It didn't bring into that legislation any of the more recent legislation. It's basically just taken all the other little regs and additions and added them, and so we deal with the 2016 regulations. England, and Wales and Scotland are still the 1998 . . .

Seamus: That's right.

Scott: . . . regulations, but they're pretty similar.

Seamus: Very much so. And Regulation 9 over in the 1998 regulations in England and our 2006 regulations, I mean, the requirement is to keep records which are adequate to show the time that are specified in each piece of the legislation. And essentially what you're looking at is that we now have a disparity in relation to what our domestic or what our law tells us that we have to do in terms of time records as to what the European Court have come back to tell us.

Scott: So if I were an employer in Northern Ireland, and I say, "I'm okay. I'm compliant with the 2016 regulations," which is regulation 11 in Northern Ireland, "to keep adequate records." The point is that what I consider adequate records, in order to reflect what the directive actually says, I should be keeping a record of every hour that's worked by every worker.

Seamus: That's it.

Scott: Whereas anything less than that would not meet the terms of the directive and, therefore, there may be a tendency that I would breach somebody rights to time off or whatever it happens to be under the regulation.

Seamus: That's exactly it. And really, I mean, what we're saying at the minute is that our laws are not in keeping with what the requirements of the directive are. And the usual position would be that it would be up to each member-state and up to each country now to amend their legislation and their laws that are applicable. But that's all well and good. As we all know, we're in this quandary at the minute, that the plain and straightforward view is that our government has told us that we are leaving the European Union.

And it's this question, and the real interesting aspect of it is around well, what's going to happen then? Because my understanding is that what government has said is that any European legislation that has been adopted up to this point will remain law in the UK. But now we have another element of the directive that's saying, well, you have to implement the recording of all of this additional information for some employers as to what the worker is doing on a daily basis in terms of their working hours.

My kind of view in terms of that is I think that this is going to create a bit of a difficulty, you can imagine. I mean, the enforcement itself of the employer to record these hours, the enforcement comes from the Health and Safety Executive. But we all know that the likelihood is that . . . and the way that all the case law is going is that there's protection for the employees and essentially that the employees should be remunerated on holidays and essentially that it should be reflective of their genuine working week as they do. So the law has moved in the favour of the employee in that respect already. And I can't imagine that there's going to be a change in the stance in terms of it.

Scott: No, the law's moved, but it's all through case laws.

Seamus: Yes.

Scott: Or through ECJ cases that have also been looked at domestically, but the legislation hasn't changed at all. So your point about Brexit, presumably, is that, assuming that we come out of the EU, what will be adopted will be the regulations which are inadequate, as opposed to directive, which gives the protections. And that might be . . . I don't know, I'm just putting it out there. But it might be one of the motivations for not amending the legislation, is that if you bring it up to date to reflect the case law, and the additional protections that are in the directives themselves, then that would be adopted by the UK post-Brexit.

Whereas, currently stands anyway, assuming that we come out of the EU, what we'll get is adequate records as opposed to requiring everybody to record every hour.

Seamus: A daily record, yeah.

Scott: We'll go back to normal pay or, sorry, contractual payroll and average pay and so on, because those things are contained as a result of interpretations of the directive as opposed to the Working Time Regulations.

Seamus: That's right.

Scott: And that would be the fear, I think, if you're from a trades union point of view or worker point of view, is you end up with fewer rights post-Brexit as a result of only adopting the regulations rather than directives.

Seamus: The directive, yeah, that's right. And I mean, I think from the commentary that I've that I've read and around this, and this is a fairly recent case, so there's not a huge amount. But what it's saying is that the reality is that as a result of the decision, the normal process would be that the employers are going to find it harder to defend a claim of working time limits and that minimum rest breaks and things like that haven't been complied with. And I think we're already, with the way the case law has moved, we're already on that track. So it'll be interesting to see how that develops.

But the other aspect I know that we had mentioned previously, the Garda Siochána case, and there was this aspect, almost, of it doesn't matter what the domestic law says, we have to enforce the directive.

Scott: Yeah, just apply the domestic legislation is what they were told in that case, yeah. The WRC against Garda Siochána.

Seamus: Yeah. So that's one way of looking at it, but then again, that is coming from the south. They're not planning on leaving Europe at this point. So who knows what's going to happen?

Scott: They also have stronger working time laws as well.

Seamus: Yeah, because we'd mentioned the Kepak case and things like that as well in terms of the decision there. And the decision said, I mean, essentially, it does say that all the working hours should be recorded, and that's the way that things were moving in the south anyway. So it's no great surprise, the decision itself, but it's just the ramifications that it'll have.

Scott: Okay. You're listening to Seamus McGranaghan and Scott Alexander. I'm from Legal-Island. He's from O'Reilly Stewart. And if you want to send in any questions, do it through the chat box.