The Court of Justice of the European Union (CJEU) has today handed down an important judgment about working time in the case of CCOO v Deutsche Bank SAE.
As a result, UK employers must take steps to ensure their staff are not exceeding the 48 hour maximum working week and are taking adequate rest breaks.
The case was brought by a Spanish Trade Union (CCOO). It wanted a system for recording how long its members worked each day (including the number of hours worked overtime) so that it could verify these complied with their stipulated working conditions.
Under Spanish law, employers only have to provide a record of overtime hours worked by each worker - rather than all hours actually worked. The court was given evidence that these records were not accurate and that 53.7% of all overtime worked was not recorded.
The CJEU made it clear that all workers had a fundamental right to limit their working hours and to take adequate rest to protect their health and safety. It said that the only way to ensure that these rights were met was to accurately record the number of hours worked, when that work was done and the number of hours of overtime worked.
According to the judgment 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.
Relevance to UK employers
This decision is binding in the UK and will affect those employers who do not accurately record the numbers of hours their staff work - whether these are paid or unpaid.
Under Regulation 9 of the Working Time Regulations 1998, employers have to keep "adequate" records to show that workers are not working in excess of 48 hours a week and the rules around night work are complied with. They don't explicitly require employers to record data to show that daily and weekly rest periods are met.
Records have to be kept for at least two years.
These rules are enforced by the Health and Safety Executive. Employers that breach them can be prosecuted and fined. Employees can also rely on WTR breaches to support employment claims such as constructive unfair dismissal or personal injury claims
This decision appears to go further than our laws require but that doesn't mean that employers can ignore it. Where possible, employment tribunals and courts have to interpret our legislation, in accordance with CJEU decisions and European laws.
Employers should make sure that the systems they use to measure working time are "objective" and "reliable" and reflect all hours their staff work - not just those set out in their contracts of employment.
Cost is not important!
This may cause headaches for organisations that don't measure how many hours their staff work - and additional cost in setting up a system to capture this information. Plus, the CJEU said that employers can't avoid taking these steps simply because they are too expensive to implement.