Highlights of the Ruling
Description
An individual was recruited as a domestic worker in Spain. Following her dismissal, she brought an action before the social court in Spain seeking a declaration that her dismissal was unfair and requesting that her employers pay her for the overtime she worked and the days of leave she had not taken.
She claimed to have worked 46 hours per week and later 79 hours per week for a gross monthly salary of EUR 2,363.04. However, she could not prove that she worked the hours she claimed, as Spanish law allows exemption from time recording to employers of domestic workers.
Legal Context
All EU member states have implemented the EU Directive for Working Time 2003/88/EC in their national legislation.4
Spanish law5 states, among other things, that employers must make provision for daily recording of working time, including the exact start and end of a working day for each worker. The records of working time must be kept by the employer for four years. The law exempts certain employers, including those employing household domestic staff, from the obligation to record actual working time of their workers.
Ruling Raises Issues: Daily Recording of Working Time and Potential Discrimination
The CJEU stressed that the domestic worker in question was a full-time employee and as such should not be excluded from the obligation for daily recording of working time.
The Court concluded that even though EU member states have a margin of discretion when they implement EU directives into their national legislation, the EU member states have an obligation to achieve the result envisaged by that directive and to take measures fostering the fulfillment of that obligation. This is the duty of all national institutions, including local courts and administrative institutions. Spain, by excluding employers of domestic household workers from recording the working time of their workers, did not achieve this result in the EU Working Time Directive.
Further, the CJEU noted that 95 percent of domestic household workers in Spain are women. Consequently, the difference in treatment as regards recording working time as compared with men raises questions about (indirect) discrimination. Such discrimination is permissible only if it pursues a legitimate aim that is compatible with the fundamental rights in the EU and is justified by overriding reasons in terms of the public interest. In such instance, an EU member state as the author of the allegedly discriminatory rule must show that the rule is justified by objective factors unrelated to any discrimination on the grounds of sex/gender.
Here, the Court concluded that the Spanish government did not submit any observation in that regard. It is therefore up to the local Spanish court to assess if the issue at hand constitutes indirect discrimination on the grounds of sex/gender.
