C-55/18 CCOO – A Case for Clocking In?

The European Court of Justice has rendered a judgment regarding employees’ rights to fair and just working conditions. Due to its potentially far-reaching consequences throughout the European Union, the case has given rise to a lively discussion in the media and among employers. Our lawyers give their view on how this decision impacts Swedish Law.

Background

On 14 May 2019, the European Court of Justice (the “ECJ”) rendered a judgment in case C-55/18 CCOO regarding employees’ rights to fair and just working conditions as guaranteed in the European Charter of Fundamental Rights, and implemented by the Directives on Working Time and the Safety and Health of Workers.

The key issue in the case was whether Spanish national law, which requires employers to keep track of employees’ overtime work, but not the working time in its entirety, sufficiently implements the Working Time Directive (the “Directive”). The ECJ stated that a requirement to record only overtime hours does not provide employees with an effective means of ensuring that the maximum weekly working time is not exceeded or that the minimum daily and weekly rest periods are observed under all circumstances. In order to effectively ensure the rights under the Directive and the Charter, Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each employee to be measured. In short, the ECJ held that the Spanish legislation was insufficient in this respect.

Possible Impact on Swedish Law

In our view, the Swedish implementation of the Directive into national law is similar to the Spanish legislation as described in the case. In Sweden, the Directive has been implemented by way of the Swedish Working Time Act (Sw. Arbetstidslagen), which provides for material employee rights under the Directive, such as daily rest, weekly rest and maximum working time. The act also sets out the obligation for employers to keep track of on-call work, overtime work and additional work. Details on how employers should record employees’ overtime work have been specified in regulations issued by the Swedish Work Environment Authority (Sw. Arbetsmiljöverket). Under Swedish law, employers are required to monitor overtime work and not regular working time. Thus, this new case entails a risk that, if challenged, the Swedish implementation of the Directive may be rejected on the same grounds as the Spanish system.

Takeaways for Employers

In our view, employers are not required to implement any urgent changes in their monitoring of employees’ working time. Preliminary rulings from the ECJ primarily address the Member States, which are required to implement EU legislation into national law, and the national authorities, which are required to interpret national law in light of ECJ case law. For the time being, employers may await legislative changes or statements from national authorities.

However, there is a risk that legislative changes, such as requirements for employers to introduce burdensome administrative solutions monitoring all time worked, including regular working time, are in the pipeline. We therefore recommend that employers take a proactive approach:

  1. Review your internal processes (including as set out in any employee handbooks and collective bargaining agreements) on the monitoring of employees’ working time.
  2. Given that the case has been widely discussed, keep in mind that questions may be raised by employees or employee organizations. It is advisable to prepare for such questions and discussions and consider how they should be handled.
  3. Keep track of upcoming legislative changes and statements issued by the Swedish Work Environment Authority.

 

Author

Elin Osbeck 
Associate
Stockholm
Jacob Gustafsson 
Associate
Stockholm