By : Hazel Oliver
Firm : Lewis Silkin LLP
The European Court of Justice has ruled that employers must keep a record of all hours worked by their workers each day, in order to ensure compliance with the rules on maximum weekly working time and rest breaks.
The EU Working Time Directive (‘WTD’) limits maximum weekly working time to 48 hours a week, and gives workers the right to daily and weekly rest breaks. This has been implemented in the UK through the Working Time Regulations 1998 (‘WTR’).
The WTR do not require employers to keep a specific record of hours worked by their workers each day. There is a requirement to keep records that are ‘adequate’ to show whether the limits on maximum working time are being complied with, and to retain these records for two years (regulation 9). The UK also allows workers to agree in writing that the 48-hour working week limit does not apply to them. Where a worker opts out, the employer must maintain up-to-date records which specify the number of hours worked by that worker during each reference period (generally a period of 17 weeks) (regulation 4(6)).
This case involved a Spanish trade union challenging Deutsche Bank’s failure to set up a system for recording the time worked each day by its members of staff. Spanish national law does not specifically require employers to do this. The Spanish National High Court referred the case to the European Court of Justice, as it was not clear that Spanish law complied with the requirements of EU law.
An Advocate General of the European Court of Justice gave an opinion earlier this year that national law must require employers to keep records of actual time worked by their workers, in order to comply with the WTD. The Court has now given its judgment.
The European Court of Justice’s decision
The European Court of Justice essentially agreed with the Advocate General, ruling that all EU 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. This is necessary to ensure the effectiveness of the right of workers to a maximum weekly working time, and the right to both daily and weekly rest breaks.
The key points from the decision are set out below.
- The right to maximum working hours and rest breaks is a particularly important rule of EU social law, enshrined in the Charter of Fundamental Rights of the EU.
- The purpose of EU-level working time rules is to guarantee better protection of the health and safety of workers, and member states must ensure that these rights are guaranteed in full.
- An objective and reliable determination of the number of hours worked each day and week is essential to enable both workers and employers to verify that these rights have been complied with. Without this, the rights are liable to be rendered meaningless.
- Use of other evidence such as witness statements, emails or telephone and computer records is not sufficient. This does not provide objective and reliable data, particularly taking into account the fact that workers are the weaker party in the employment relationship and may be reluctant to give evidence against their employer.
- Member states have discretion as to what specific arrangements they make to implement a system for requiring employers to record hours worked.
The European Court of Justice’s judgment is clear that employers should be required to record the actual daily working hours of their workers, as this is the only effective way to ensure that working time rights are being respected. This raises a question in the UK as to whether the WTR currently comply with the Court’s ruling.
As noted above, there is a requirement in the WTR to keep ‘adequate’ records to show whether maximum working time limits are being complied with. The purpose behind this is the same as that behind the European Court of Justice’s decision: to ensure the effectiveness of these rights. The WTR do not, however, specifically require employers to keep a record of actual working hours. Although many employers will keep such records, particularly where the workforce is hourly paid, others will not. Professional services firms (such as Deutsche Bank) will often simply rely on contractual hours and records of absences, rather than recording actual time worked in the office.
More is required where workers have opted out of the 48-hour week, but even then the requirement is only to keep a record of hours worked during the 17-week (usually) reference period. This would not be adequate to show compliance with rights to daily and weekly rest breaks.
This suggests that the UK has failed to implement fully the requirements of the WTD, as it does not require employers to record the actual time worked each day by their workers. Leaving aside Brexit (which may mean the UK is no longer bound by this decision), what may be the consequences of this?
In theory, the UK could be sued for damages for failing to implement the WTD correctly, but it is unclear what loss an individual might be caused by a failure to require employers to record working hours. In relation to enforcement against the employer, the courts are obliged to interpret domestic law in line with EU law, so could interpret the requirement of ‘adequate’ records in the WTR as meaning a full record of daily working hours. The WTR do not, however, allow individual workers to make a claim for an employer’s failure to keep adequate records. Instead, this is a criminal offence enforced by the Health and Safety Executive.
The upshot is that, although the UK may be in breach of the WTD, individuals are unlikely to be able to use this decision to require employers to keep more detailed records of working time.
The other point of interest in the European Court of Justice’s judgment is its opinion that computer records do not provide sufficiently objective and reliable data about working hours. For jobs that rely heavily on technology, including many professional roles, electronic data may actually provide the most accurate measure of working time. This is particularly the case where workers are routinely accessing emails and working on portable devices after they have left the office: time that the employer is unlikely to be able to capture any other way. Many employers will have a wealth of electronic data on their workers, which is both objective and reliable. The main challenge is how to organise this data in a meaningful and accessible way that is compliant with data protection requirements.