Referring to a judgment of May 2019 (case C-55/18 - see EUROPE 12254/22), the Court of Justice of the European Union recalled, on Thursday 19 December, that domestic employers must establish a system enabling the duration of the daily working time of each domestic worker to be measured (case C-531/23).
In Spain, a full-time domestic worker was unfairly dismissed. However, the Spanish judge ruled that the worker had not proved either the hours worked or the salary she was claiming, taking the view that she could not rely solely on her employers’ failure to produce daily records of the time worked. According to the judge, Spanish legislation exempts family homes from the obligation to record the actual working time performed by their employees.
In response to a reference for a preliminary ruling, the Court of Justice referred to the employers’ obligation to establish a system for measuring the daily working time worked by each employee under Directive 2003/88 on the organisation of working time. Otherwise, it states, the employee concerned would be deprived of the possibility of determining objectively and reliably the number of hours worked and their distribution over time.
On the other hand, the Court considers that it is possible to lay down specific features because of the sector of activity concerned or because of the specific characteristics of certain employers, such as their size, provided that the maximum weekly working time is actually guaranteed. Thus, on account of the specific features of the domestic work sector, derogations may be provided for in respect of overtime and part-time work, provided that those derogations do not render the legislation in question devoid of substance, something that will be for the Spanish court to determine.
Furthermore, notes the Court of Justice, since domestic workers are a clearly female-dominated group of workers, it cannot be ruled out that, in this case, there is indirect discrimination on grounds of sex, unless that situation is objectively justified, which the Spanish court will also have to determine.
To see the judgment of the Court of Justice: https://aeur.eu/f/ews (Original version in French Mathieu Bion)