Under the Working Time Regulations 1998 there is currently no obligation on employers to implement a system that specifically records employee’s working time.
In the recent case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE it has been found that employers must record workers daily working time to ensure they are complying with the Working Time Directive.
What is the Working Time Directive?
The Working Time Directive (WTD) is EU legislation which requires EU Member States to guarantee certain rights for workers. The WTD is implemented in UK law as the Working Time Regulations (WTR) 1998. It sets out the requirements relating to working hours, rest breaks and annual leave with the intention to support the health and safety of workers.
What rights are protected under the WTD?
- A limit to weekly working hours - for each seven day period working hours must not exceed 48 hours, including overtime (subject to workers opt out).
- A rest break during working hours if the worker is on duty for longer than 6 hours.
- A minimum daily rest period of 11 consecutive hours of rest in every 24 hour period.
- A minimum weekly rest period of 24 uninterrupted hours in addition to the 11 hours' daily rest for each 7-day period.
- Paid annual leave of at least 4 weeks per year.
- Extra protection in case of night work – this includes average working hours that must not exceed 8 hours per 24-hour period.
Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (DB SAE)
In this case CCOO (a Spanish worker’s union) wanted confirmation that DB SAE was under an obligation to set up a system that recorded workers actual working hours each day. CCOO wanted this to ensure the WTD was being complied with.
The European Court of Justice (ECJ) found that without a recording system it would be difficult, if not impossible, to reliably measure the hours being worked each day by workers.
The ECJ found that to guarantee the effectiveness of workers rights ‘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’.
A recording system would allow workers to access reliable and objective data to see how many hours they had worked. As well as ensuring that employers are complying with their obligations under the WTD a recording system may also assist in resolving employer/employee disputes in relation to working hours, breaks and annual leave.
No specific recording system is required under the UK WTR 1998, instead under regulation 9 an employer is only obliged to keep ‘adequate records’ for weekly working and night time working hours, not daily hours or all hours of working time.
The ECJ in CCOO v DB SAE commented that it would leave it up to Member States to determine ‘the specific arrangements for implementing such a system, in particular the form that it must take’.
Implications for employers
Due to the above case questions are now being raised about whether the WTR 1998 complies with the WTD. Many employers will recall the consternation when the ECJ ruled that the entitlement to normal pay for the WTD holiday entitlement had to include “normal” overtime, contrary to the UK WTR which excluded overtime from the calculation. In short the WTD trumped the WTR.
It is difficult to know in this period of uncertainty how matters will develop, but prudent employers should consider how confident they are that their systems can objectively, reliably and accessibly measure the working time of each worker day by day, and should assess their potential risk exposure as a result.
For further information please visit:
Maximum weekly working hours https://www.gov.uk/maximum-weekly-working-hours
Working Conditions - Working Time Directive https://ec.europa.eu/social/main.jsp?catId=706&langId=en&intPageId=205#navItem-1