Recently the Court of Justice of the European Union (CJEU) has ruled that, in order to comply with the EU Working Time Directive's (WTD) provisions, employers are obliged to set up a system for measuring actual daily working time for individual workers.
CJEU ruling on working time record-keeping
In a case brought by a Spanish trade union, Federación de Servicios de Comisiones Obreras (CCOO) the CJEU has held that under the WTD, Member States are required to impose record-keeping requirements on staff to ensure the maximum 48 hour weekly working time limit is not exceeded if an opt-out is not in place and also to ensure minimum daily and weekly rest breaks are observed.
The CJEU noted the importance of the fundamental right of workers to daily and weekly rest periods and limits on maximum hours meaning employers are obliged to ensure that workers, who are the weaker party in the employment relationship, actually benefit from these rights.
In the Court's view, without a system that reliably records the working hours of the individuals within the business, it is very difficult, if not impossible, for workers to ensure their rights are complied with. To ensure the effectiveness of the rights provided, the CJEU has ruled that 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 to be measured".
The CCOO ruling concerns a challenge to Spanish law implementing the WTD, but has wide repercussions making working time record-keeping requirements more onerous across all EU Member States, including the UK.
How does this impact employers in the UK?
What are the existing UK working time record-keeping provisions?
Regulation 9 of the Working Time Regulations 1998 (WTR) requires employers to keep "adequate records" to show whether certain, but not all of the limits and requirements specified in the WTR, are complied with (e.g. in respect of the maximum weekly working time, maximum daily and weekly working time for young workers and maximum length of night work). These records should be retained for two years from the date on which they were made
Regulation 9 does not specifically require records to be kept of daily or weekly rest or of the hours worked each day for every worker. As such, the WTR do not go far enough to meet the more onerous record-keeping requirements now held to be required by the CJEU.
What if the entire workforce have signed 48-hour week opt-out agreements?
Having a workforce that have all signed an opt-out agreement does not mean an employer is not impacted by this judgment.
The CJEU states that "the objective and reliable determination of the number of hours worked each day and each week is essential in order to establish, first, whether the maximum weekly working time …was complied with …and, second, whether the minimum daily and weekly rest periods… were complied with".
The limit on average working hours does not apply in the UK if the employer has obtained the workers' agreement in writing to perform work in excess of the limit (regulation 4(1) WTR), in other words a valid opt-out is in place from the average weekly working hours.
However, it should be remembered that workers cannot be forced to sign an opt-out agreement and any opted-out worker can cancel the opt-out at any time by giving at least 7 days' notice unless the opt-out agreement provides for longer notice, which cannot exceed 3 months.
If a worker has signed a valid opt-out, then the need identified by the CJEU to determine the maximum weekly working time does not come into play. However, a worker can only opt-out of the limit on maximum weekly working time - the opt-out does not extend to rest-breaks which are also covered by the CJEU decision.
Under the WTR, workers in the UK are entitled to:
- a rest break away from the work station of not less than 20 minutes where daily working time is more than 6 hours;
- a daily rest period of at least 11 consecutive hours in each 24 hour period; and
- a weekly rest period of not less than 24 hours in every 7 day period. Alternatively, an employer may average the rest period over a 14 day period by 2 uninterrupted rest periods of 24 hours or 1 uninterrupted 48 hour period.
Workers can elect to work additional hours by foregoing their rest entitlements under the WTR, (subject to certain restrictions, notably rules on night working, and additional foreseeable risk to health and safety). This is not to suggest that workers can 'opt out' of their right to rest periods in the sense of a legally-binding waiver. They have a right to rest breaks, but they also have the freedom to choose not to exercise that right at any given time.
The entitlement to rest periods may be excluded or modified in collective or workforce agreements but in each case the worker must be able to take an equivalent period of compensatory rest within a reasonable time.
There are some exceptions to the right to rest breaks for those in 'excluded sectors' under Regulation 18 (e.g. security guards) and autonomous decision-makers under Regulation 20. Also, 'special case' workers are not given the rest periods set out above, but must, wherever possible, be given an equivalent period of compensatory rest.
Accordingly, even for 'opted-out' workers there is still a need to record working hours to determine whether the minimum daily and weekly rest periods are complied with.
What is the impact of this judgment for employers in the UK?
In the UK, proceedings relating an employer's failure to keep records cannot be brought by individual workers but are instead brought by the Health and Safety Executive (HSE) or one of the other relevant enforcement agencies designated under the WTR 1998. A successful claim can result in the employer being guilty of a criminal offence and liable to pay a fine.
Member States' authorities (including the HSE) are obliged to interpret national law in a manner that is consistent with CJEU case law. However, it seems unlikely that the HSE or other relevant agencies would pursue a claim against an employer for failing to record the hours worked each day by each worker without first giving advance notice that they intended to take the approach required by this case. Namely that that this interpretation of the WTD should:
- be applied directly as against public bodies, and/or
- inform a court or tribunal's interpretation of regulation 9 of the WTR 1998 as applied to all employers.
Amendments to the WTR are clearly required to meet the standard of record-keeping set out in the CCOO ruling. Shortly after the judgment was handed down, new Spanish legislation (Royal Decree-Law 8/2019) came into force, making time recording mandatory on a daily basis so as to increase legal certainty and facilitate supervision by employees' representatives and the Labour and Social Security Inspectorate. Spanish sanctions for non-compliance with the working time record include fines up to EUR 6,250.
While the UK Government has consistently said that CJEU decisions made before Brexit will continue to bind courts after the UK leaves the EU, it is uncertain if and when legislative amendments similar to those introduced in Spain will be made in the UK. If the UK Government fails to amend the WTR, the EU Commission may bring infringement proceedings against the UK, although it is unclear what impact Brexit may have on the timeline and process of any legal action.
Another possible consequence of this judgment is that claimants in claims relating to rights under the WTR may argue that, in the absence of the employer having records of hours worked each day, the standard of evidence expected from the claimant should not be too exacting. In other words, tribunals should not require detailed records of missed breaks from claimants. Such an approach would take into account the difficulties faced by workers in the absence of a reliable and objective recording system by employers.
What should employers be doing now?
In order to be compliant with the WTD, employers should implement a system to objectively record all their workers' daily working hours. Employers should consider how they can collect the data needed to allow more detailed records of working time to be kept in a practical and cost effective manner. This does not mean a return to old-fashioned punch time cards. Modern working practices with the rise of agile working have led to less clearly defined and often trust-based working hours for many workers. The same digital technology which allows for more flexible working arrangements may also assist with modern time recording.
This summer sees a new EU Parliament and EU Commission: will the stalled revision of the WTD find a new impetus? Modern technology and a growing use of flexible working arrangements offer significant advantages to work-life balance for many workers. At the same time, there are growing warnings of the possible health impacts due to the increasingly blurred lines between home and work. A balance will need to be struck between not only employer business flexibility needs and workers personal flexibility needs, but also with working time compliance requirements aimed at protecting the health and safety of all workers. Whether the existing provisions of WTD 2003 are fit for modern work places is one for future debate.