The Working Time Directive (WTD) sets out rules governing working time across EU Member States. This includes the entitlement to daily rest breaks (11 consecutive hours per 24 hours) and weekly rest breaks (24 consecutive hours in each 7-day period). The WTD also sets a maximum limit on average weekly working time to 48 hours.
The WTD has been implemented into UK law by The Working Time Regulations 1998 (WTR). The WTR require employers to maintain ‘adequate’ records to show:
- Each worker’s hours (including overtime) are not more than an average of 48 hours per week (unless the worker has opted out); and
- Restrictions on hours worked at night have been observed.
It does not state what form such records must take and, until recently, there was no obligation to record daily or weekly rest breaks, or the actual number of hours worked overall each day.
A Recent Case
In Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (the full judgment of which can be read here https://bit.ly/2Zcd6wY), the Court of Justice of the European Union (CJEU) ruled that employers should keep records of actual hours worked to comply with obligations under the WTD.
Spanish workers’ union, CCOO, brought a claim against Deutsche Bank in the Spanish High Court seeking a declaration that the Bank was obliged to record the daily working time of all of its workers.
CCOO wanted to ensure the Bank was adhering to legal working time limits and sought to understand the amount of overtime worked each month. CCOO argued that unless the EU Directive was interpreted in this manner, it would be impossible to check whether employers were complying with the requirements of the Directive. The Bank had a system for recording absences but not for measuring daily working time.
The Spanish High Court referred the question of whether the WTD and/or the EU Charter of Fundamental Rights required employers to record daily working hours to the CJEU.
The CJEU ruled national laws must require employers to set up ‘an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured’.
Without such systems, it would not be possible to reliably assess the number of hours worked; when they were worked; and, the amount of overtime worked. This would make it difficult, if not impossible, for workers to ensure their working time rights were respected and, could place their health and safety at risk.
The UK Government made submissions in this case to the effect that requiring employers to implement such a system would be costly. This did not persuade the Court, which considered this argument to be outweighed by workers’ health and safety.
Whilst Brexit could allow the UK Government to move away from this decision, it is, in our view, unlikely, given its expressed commitment not to revoke existing EU law employment protections.
Employers must now record the actual daily number of hours worked by all workers. We can advise employers and employees on their position, in light of the above. Please get in touch with us today on 0203 146 3549 / e:mail: [email protected]
All our articles are intended for informational purposes only and do not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information provided.