Employers are obliged to record daily working time for individual workers in order to comply with the Working Time Directive (WTD), the European Court of Justice (ECJ) has ruled.
In Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE C-55/18 the ECJ considered whether there was an obligation for an employer to record hours worked in order to check that working time limits are properly adhered to. A Spanish workers’ union brought the action against Deutsche Bank to determine whether such an obligation existed.
Writing for Lexology, Liz Stevens, Professional Support Lawyer at Birketts, explained that the ECJ found that EU Member States are required to ensure that workers benefit from the rights to maximum working hours and daily and weekly rest periods.
As such, the ECJ reasoned that, without a system in place to measure working time, 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,” wrote Stevens.
As a result, the ECJ found that a national law that did not make provision for working time records to be kept failed to guarantee the rights outlined in the WTD and could compromise the protection of 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,” wrote Stevens.
The UK’s Working Time Regulations 1998 make provision for employers to keep ‘adequate records’ for two years, which show weekly and night work limits are being complied with. However, as Stevens explains, these 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,” she wrote.
Although enforcement of record-keeping requirements falls under the Health and Safety Executive, Stevens notes that without ‘objective and reliable data’ “employers may find it harder to defend a claim that working time limits and minimum rest breaks have not been complied with”.
