Employment and Immigration Law Update – Recording Working Time

The European Court of Justice (ECJ) has ruled that to comply with the EU Working Time Directive 2003/88 (WTD), employers are obliged to record actual daily working time for individual workers.

Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE C-55/18

Facts

A Spanish workers’ union brought an action against Deutsche Bank, seeking a declaration that the bank was obliged to record the actual number of hours worked by its staff in order to check that working time limits were properly adhered to.  Following a reference by the Spanish court, the ECJ considered whether there was any such obligation on the employer under either the WTD or EU Charter of Fundamental Rights. 

ECJ decision

The ECJ noted that EU Member States are under an obligation to implement the measures necessary to ensure that workers benefit from the rights to maximum working hours and daily and weekly rest periods.  Without a system in place to measure the duration of time worked each day, the ECJ considered that it was not possible to objectively and reliably determine the number of hours worked and when that work was done, or the amount of overtime worked. In consequence, it would be excessively difficult for workers to ensure that their rights were complied with. 

According to the ECJ, a national law that did not make provision for such records to be kept failed to guarantee the effectiveness of the rights conferred by the Charter and the WTD, and could compromise the WTD’s objective of protecting workers’ health and safety.  It held that in order to ensure the effectiveness of these rights, Member States must require employers to set up an objective, reliable and accessible system to enable the duration of time worked by each worker to be measured.  

Consequences

Currently, the Working Time Regulations 1998 (Regulations) require employers to keep ‘adequate records’ to show that weekly working time limits and night work limits are being complied with. Such records must be retained for two years. These record-keeping requirements do not cover daily or weekly rest breaks, or require all hours of work to be recorded. It therefore appears that the Regulations as currently drafted do not comply with the WTD following the ECJ’s judgment in this case. The Regulations will need to be amended in order for the UK Government to avoid any claim that they have failed to properly implement the WTD. Whether or not this is actually done will depend on the UK’s continued membership of the EU.

Enforcement of the record-keeping requirements under the Regulations is through the Health and Safety Executive (HSE), which means that an individual worker does not have the right to pursue a claim against his or her employer for a failure to keep adequate working time records. However, without the ‘objective and reliable data’ provided by a record of all hours worked, employers may find it harder to defend a claim that working time limits and minimum rest breaks have not been complied with.

The content of this article is for general information purposes only. For further assistance or advice regarding the recording of working time, please contact Liz Stevens. Alternatively, please contact another member of the Birketts’ Employment Team.

This article is from the May 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. Law covered as at May 2019.

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