Case update (1): Working time – Record keeping

Summary: Is there an obligation for EU employers to introduce a system for recording actual number of hours worked each day?

Yes, says Advocate-General Pitruzzella in Federacion de Servicios de Comisiones Obreras -v- Deutsche Bank SAE available here.

Background:  Under the EU working time directive, employers are required to set up a system for recording actual daily working time for workers who have not expressly agreed to opt out of the maximum 48 hours of work per 7 days.

Under the UK’s Working Time Regulations (WTR), employers are under an obligation to keep and maintain records that are ‘adequate’ to show that:

• working time (including overtime) for all workers who have not opted-out does not exceed 48 hours per week on average; and
• the limits on night work have been complied with.

Records must be kept for two years from the date on which they were made. There is no requirement to keep records in relation to rest breaks and rest periods.

The WTR do not specify what format records have to take. Guidance published by the Health and Safety Executive states that employers don’t necessarily have to create records specifically for the purposes of showing compliance with the WTR. It may, therefore, be possible to use existing records maintained for other purposes such as pay.

There is also an obligation to keep up-to-date records of all workers who have signed agreements opting-out of the 48-hour maximum working week. This could be a list of the relevant workers’ names together with copies of the signed opt-out agreements. However, there is no need to keep records of the hours actually worked by these workers.

Facts:  Spanish trade unions brought an action against Deutsche Bank seeking a declaration that the bank was required to set up a system recording the actual number of hours worked each day by its full-time employees. The bank’s position was that there was no such obligation under Spanish law, only an obligation to record overtime hours.

The National High Court of Spain referred the question to the CJEU asking whether there is an obligation under the Working Time Directive for employers to introduce systems to measure the actual duration of the working day and working week.

The Advocate General gave their Opinion that there is such an obligation, that the obligation is not restricted to overtime hours, and that ‘any practice or omission by an employer that may deter a worker from exercising rights as to working hours must be regarded as incompatible with the Directive.‘  I.e. without a system for measuring the number of hours worked, there can be no guarantee that all the limits laid down by the Directive (in relation to maximum weekly working time, rest breaks, daily and weekly rest periods etc.) will actually be observed or that workers will be able to exercise their rights.

Implications:   If the CJEU follows the Advocate General’s opinion (which it does regularly) there will be an obligation at a European level to introduce a system for recording actual number of hours worked each day. Such a decision is likely to lead to the conclusion that the UK WTR do not properly implement the Working Time Directive and that instead employers should be required to set up a specific system for recording the number of hours worked by individual workers each day.  In particular this would affect employers of bank workers and those working irregular hours, or where the worker holds more than one job.

The impact is somewhat dependent on Brexit; the topic of working time regulations is likely to be a major target for reform in the event of a no deal Brexit so watch this space for further updates…