Case update (3): Working Time – Record Keeping  – The Hour is Coming…

What do we already know?

In our February 2019 Newsletter Case update (1): Working time – Record keeping we updated you that the Advocate General’s Opinion was that there was an obligation on EU employers to introduce a system for recording actual number of hours worked each day.

The Advocate General concluded that without a system for measuring the number of hours worked, there could be no guarantee that all the limits set by the Working Time Directive (in relation to maximum weekly working time, rest breaks, daily and weekly rest periods etc.) would actually be observed or that workers would be able to exercise their rights.

What’s new?

The CJEU has followed the Advocate General’s Opinion. This means that UK employers should take steps (at least pre-Brexit!) to record hours worked by staff in order to show compliance with limits set by the Working Time Directive (maximum weekly working time, rest breaks, daily and weekly rest periods etc.).

For more detail on this please read on…

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

Yes, says the CJEU in Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE available here.

Background:  Under the EU Working Time Directive (WTD), 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.

Currently, 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 reality, as you are probably well aware, is that virtually no employers keep records of working time for employees who work standard hours.  For years, UK employment lawyers have tended to advise that it is sufficient to state the working hours in the contract of employment and that is enough.

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 (WTD) 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.’  In other words, without a system for measuring the number of hours worked, there can be no guarantee that all the limits laid down by the WTD (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.

The CJEU has agreed with the Advocate General and said that the only way to ensure that all workers can limit their working hours, and take adequate rest to protect their health and safety, is to accurately record the number of hours worked, when that work was done and the number of hours of overtime worked.

The CJEU said that Member States must require employers to set up “an objective, reliable and accessible system enabling the duration of time worked each day by each worker“. It said that this information will help workers (and those representing them) to understand if their rights have been breached and to assist “competent authorities” and national courts to enforce those rights.

This appears to apply to all workers – even those whose time is unmeasured, or in the case of UK workers, those who have opted out of the maximum working week.

Implications: This case highlights that the current UK Working Time Regulations (WTR) do not comply with the EU’s WTD requirements.  This means that, in theory, the WTR should be amended in order for the UK Government to avoid any claim that they have failed to properly implement the WTD.  That’s the theory, but of course the reality is that whether or not this is actually done will depend on the UK’s continued membership of the EU or, if Brexit does finally happen, whether we end up in some form of treaty with the EU under which we agree to mirror their employment legislation.  So for now, the outcome would seem rather uncertain.

These rules on recording working hours are meant to be enforced by the Health and Safety Executive and employers that breach them can be prosecuted and fined by the HSE.  However, we are not aware of this happening very much in practice.  Importantly, individual workers do not have the right to claim against their employer for a failure to keep adequate working time records.

Employers should bear in mind, however, that without the ‘objective and reliable data’ provided by a record of all hours worked, they may find it harder to defend a claim that working time limits and minimum rest breaks have not been complied with. Particularly now as, where possible, Tribunals and courts have to interpret our legislation, in accordance with European laws, including CJEU decisions, and the fact that an employer does not have ‘an objective, reliable and accessible [time-recording] system’ which accurately records the numbers of hours staff work,  may impact on the Tribunal or court decision.