The ECJ has ruled that Member States must require employers to have a system in place to measure the daily working time of all workers.
Importantly, this system must go beyond merely recording overtime hours or drawing upon other sources of information which could be pieced together to identify daily working hours. The system of recording daily hours must be objective, reliable and accessible.
The Working Time Directive (WTD) sets out the rules governing working time across EU Member States. Amongst other things, the WTD sets down the entitlements to daily rest breaks of 11 consecutive hours per 24 hours and weekly rest breaks of 24 consecutive hours in each 7 day period. It also sets down the limit on the average maximum weekly working time of 48 hours per week.
The Working Time Regulations 1998 (WTR) implements those rules in the UK. The WTR requires employers to keep adequate records to show whether the weekly working time limits (and night work limits) are being complied with. However, there is no requirement to record daily or weekly rest breaks, or the actual number of hours worked overall each day.
CCOO, a Spanish workers' union, brought a claim against Deutsche Bank (the 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 this information for two reasons: first, to check that the Bank was adhering to working time limits provided for in legislation and collective agreements and, second, to understand the amount of overtime being worked each month. In common with many employers, the Bank had a computerised system for recording absences, such as holidays or sick leave. Yet, it had no mechanism for measuring daily working time.
The Spanish High Court asked the ECJ whether the WTD and/or the EU Charter of Fundamental Rights (the Charter) required employers to record daily working hours.
The ECJ concluded that Member States must require employers to set up objective, reliable and accessible systems for measuring the daily working time of all of their workers. 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. In turn, this would make it excessively difficult, if not impossible, for workers to ensure that their working time rights were respected. It could also jeopardise their health and safety. Notably, the ECJ said:
"…the law of a Member State that…does not require the employer to measure the duration of time worked, is liable to render the rights [enshrined in the WTD] meaningless by failing to ensure…actual compliance with the right to a limitation on maximum working time and minimum rest periods, and is therefore incompatible with the objective of that directive, in which those minimum requirements are considered to be essential for the protection of workers' health and safety." (Paragraph 59)
The ECJ went on to say that a system of recording overtime hours only would not be sufficient, since it presupposed that the amount of basic hours worked was known and measured in advance. Recording overtime hours only would not provide workers with an effective means of assessing whether working time limits overall had been exceeded. It also would not assist workers who do not work overtime hours.
They also rejected the Bank's argument that workers could rely on alternative sources of evidence to discern their working hours, such as emails, telephone records, computer records and witness statements. The ECJ said such sources do not enable the number of working hours to be objectively and reliably established. In particular, witness statements could not be regarded as "an effective source of evidence capable of guaranteeing actual compliance with the rights at issue".
It's also worth noting that the UK Government made submissions to the ECJ in this case highlighting that requiring employers to implement such a system would be costly. However, the ECJ was unpersuaded, concluding that the health and safety of workers trumped economic considerations.
The WTR does not currently require employers to have a system for measuring working hours. Can employers without such systems defend their position on the grounds that they are complying with the national law? The answer is probably not. The ECJ drew attention to the role of the national courts in interpreting national laws in a manner which is consistent with EU law. In other words, if the national law is deficient, the courts should adopt a purposive approach and read words into the legislation to allow compliance with EU law.
So what should employers do now? The sensible course of action would be to begin exploring how such a system for recording daily working hours can be put in place for all workers. This will already exist for certain cohorts of workers (e.g. zero-hours workers, hourly paid workers). The challenge will be rolling out a system of time-recording to salaried workers who have a fixed number of hours in their contracts, but who typically exceed those hours. Some professions, such as solicitors, operate time-recording systems for time spent working on client work, which may offer a good starting point. Even then, thought will need to be given to whether that system reflects all working hours (i.e. time spent working on non-client work) and, if it does not, how this will be rectified.
Although Brexit means the UK may be able diverge from EU law in due course, this ruling is binding on the UK now as a current Member State. Furthermore, if and when Brexit takes place, the UK Government has indicated that it will not seek to repeal existing EU labour law protections.