The European Court of Justice has held 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.
In Federacion de Services de Comisiones v Deutsche Bank SAE, a Spanish workers’ union was seeking a declaration that Deutsche Bank was under an obligation to set up a system to record the actual number of hours worked by each staff member. The ECJ found that as the worker is generally the weaker party in the employment relationship, it is important to prevent the employer from being in a position to exploit that.
Without a system that reliably records the working hours of the individuals within the business, it would be very difficult, if not impossible, for workers to ensure their rights are complied with. The ECJ therefore concluded that, in order to ensure the effectiveness of the rights provided, member states must require employers to set up an objective, reliable and accessible system of recording the time worked each day by each worker.
The UK’s Working Time Regulations (WTR) require employers to keep “adequate records” to show that weekly working time limits and night work limits are being complied with, the regulations do not however require such records in relation to daily or weekly rest, nor do they require all hours to be recorded. It is therefore unlikely that the WTR go far enough to meet the requirements of this judgement. Tribunals may choose, subject to Brexit, to interpret the WTR in line with this decision if challenges are brought in the UK. Employers will need to review their processes to ensure they can demonstrate that the hours staff are working are not breaching the underlying WTD obligations.