The recent case of Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (DB), which was heard by the European Court of Justice (ECJ), is a timely reminder to all employers in the UK to ensure that they are complying with their obligations under the Working Time Regulations (WTR), and raises questions about whether the EU’s Working Time Directive (WTD) will make those obligations more onerous.
UK’s WTR v EU’s WTD
WTR is a domestic statutory instrument introduced in 1998 with which all employers in England and Wales must comply. It was introduced to regulate hours worked by individuals and to act as a health and safety measure.
WTD is legislation which all EU member states must comply with and which the WTR implemented.
Key obligations under WTR
The most common obligations for employers under WTR are:
- Ensure each adult workers’ average working time (including overtime) does not exceed 48 hours per week (unless they have opted out). The hours are usually averaged over 17 weeks, so it is possible for a worker to work more than 48 hours in one week, as long as their average working hours do not exceed this amount.
- Ensure night workers’ normal hours of work do not exceed an average of eight hours in any 24 hour period.
- No young worker may work more than eight hours per day, or 40 hours per week (it is not possible for them to opt out of this).
- Allow workers a rest break of 20 minutes when working more than six hours per day and 24 hours’ uninterrupted rest per week.
- Allow workers 5.6 weeks’ paid holiday each year.
- Keep and maintain adequate records to show that each worker is not working over the amount of hours prescribed.
The record keeping obligations on employers under WTR are extremely important. As well as ensuring that they keep and maintain adequate records to show that its workers are not exceeding the weekly working time limits and night work limits as set out above, employers must also retain up-to-date records of workers who have agreed to opt-out of the 48 hour maximum working week. This includes their names and a copy of their opt-out agreement. These records must be retained by the employer for two years from the date on which they were made. Failure to comply with the record-keeping requirements is a criminal offence.
CCOO v DB
A Spanish workers’ union sought a declaration that DB was under an obligation to set up a system to record the actual number of hours worked each day by its staff, making it possible to check that the workers were working within the parameters set out in WTD.
The ECJ said that not having a system which enabled the duration of time worked each day by each worker to be measured, meant that it was not possible to determine, objectively and reliably, the number of hours worked, when that work was done or the number of hours of overtime worked. This made it excessively difficult, if not impossible, for workers to ensure that their rights were being complied with. It was held that a system which measured the time worked by workers each day was an effective way of easily accessing objective and reliable data as regards the duration of time actually worked.
The ECJ concluded that member states must require employers to set up an objective, reliable and accessible system which enabled the time worked each day by each worker to be measured. The ECJ has allowed each member state to define the specific arrangements for such a system.
As mentioned above, the WTR requires employers to keep adequate records which show whether the weekly time limits and night work limits set out in the statute are being complied with. However, it does not cover daily or weekly rest and it does not specifically require all hours of work to be recorded. Therefore, this case raises doubts as to whether WTR complies with WTD requirements.
Whilst the UK decides if and how to amend WTR, all employers must ensure that they are at least adhering to the current record keeping obligations under WTR. Failure to do so could lead to a criminal sanction.