The European Court of Justice (ECJ) has held that, in order to comply with the provisions of the EU Working Time Directive, member states must require employers to set up a system to measure the actual daily working time of their workers.

Legal background

Under the Working Time Regulations 1998 (WTR), which implement the EU Working Time Directive, subject to certain exceptions, workers are entitled to:

  • in-work rest breaks (20 minutes’ rest for shifts lasting six hours or more)
  • daily rest periods (11 consecutive hours’ rest during each 24-hour period)
  • weekly rest periods (24 hours’ rest each week or 48 hours’ rest per fortnight)
  • a maximum of no more than 48 working hours per week (unless the worker has opted out)

Employers are also required to keep adequate records of their compliance with certain WTR limits and requirements. However, the WTR do not currently require employers to record how many hours staff actually work.

Breach of the requirements of the WTR most commonly leads to claims brought by the worker, or more commonly their trade union, seeking compensation. However, breach can also lead to a wide range of other sanctions, including enforcement notices issued by the HSE or local authority inspectors, and corporate bodies (or their directors/officers/members in some circumstances) can face criminal liability, including an unlimited fine. The record keeping obligation is solely enforced by the HSE or local authorities; an individual worker cannot bring a claim in relation to their employer’s failure to keep adequate records. In the public sector, employers may also face the risk of judicial review on the basis that any failure to comply with the working time requirements is ultra vires.

Factual background

Like our domestic WTR, Spanish law did not require employers to accurately record the actual daily working time of workers. A Spanish union brought a group action seeking a declaration that a bank was under an obligation to set up a system to record the actual number of hours its staff worked each day. The Spanish Court referred the case to the ECJ for a preliminary ruling.

ECJ held

The European Court of Justice held that, in order to comply with the provisions of the EU Working Time Directive, member states must require employers to set up a system to measure the actual daily working time of their workers.

The ECJ noted that every worker has a fundamental right to a limit on maximum working hours and to daily and weekly rest periods. In the absence of accurate records of working time, it is very difficult or even impossible for workers to objectively and reliably determine whether their employer is complying with their working time rights. The worker is the weaker party in the employment relationship, and member states are therefore obliged to implement the measures necessary to ensure that workers benefit from their working time rights and to prevent employers restricting those rights. A system enabling the daily working time of workers to be accurately measured is a particularly effective means of the authorities and courts verifying whether the working time rights have been observed by the employer. The ECJ therefore concluded 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.

What does this mean for employers in practice?

It now seems clear that the record keeping obligations of the WTR are non-compliant with this ruling, because they do not currently require employers to record how many hours staff actually work. The fact that workers may have signed opt-outs (which allow them to work more than 48 hours per week) is not sufficient in this context, as this does not ensure compliance with in-work rest breaks, or daily and weekly rest periods.

It remains to be seen whether the WTR will be amended on account of this ruling (the failure to amend the WTR on account of a whole raft of holiday pay decisions may suggest it will not be a priority), and whether HSE and local authorities will become more aggressive in enforcing the WTR.

Meanwhile, employers may wish to consider improving their internal record keeping of working hours. Having accurate records of working time will almost certainly aid an employer in defending any claims arising from breach of WTR requirements.