After the recent and protracted litigation as regards holiday entitlement and the extent to which voluntary overtime needed to be included in the calculation of pay the CJEU has again raised serious doubts as to the lawfulness of the Working Time Regulations 1998 in a separate and hugely material regard.

Nicholas Siddall QC considers the recent judgment of the CJEU in CCOO-v-Deutsche Bank SAE

A) The Issue in CCOO

A Spanish workers’ union, which was part of a trade union organisation represented at national level, brought a group action against DB SAE. It sought a declaration that the bank was under an obligation to set up a system to record the actual number of hours worked each day by its staff, making it possible to check that the working time limits (and daily/weekly rest) laid down in national legislation and collective agreements were being observed. The Spanish court referred to the CJEU the question of whether the Working Time Directive (“WTD”) and/or Article 31(2) of the EU Charter of Fundamental Rights (“the Charter”) imposes such an obligation.

B) The Relevant Provisions of the WTD and Charter

Article 6(1) Health and Safety Directive provides:

‘Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organisation and means.

Recitals 3 and 4 of the WTD provide

(3) The provisions of [Directive 89/391] remain fully applicable to the areas covered by this Directive without prejudice to more stringent and/or specific provisions contained herein. (4) The improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.

Article 1 WTD headed ‘Purpose and scope’, provides:

2. This Directive applies to:

(a) minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and (b) certain aspects of night work, shift work and patterns of work.

It is also of note that inter alia Articles 3 and 5 of the WTD provide that the state “shall take the measures necessary to ensure that” daily and weekly rest requirements are observed.

Article 22(1) WTD then provides as follows:

‘A Member State shall have the option not to apply Article 6, while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that:

(c) the employer keeps up-to-date records of all workers who carry out such work; (d) the records are placed at the disposal of the competent authorities, which may, for reasons connected with the safety and/or health of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours”

Finally Article 31 of the Charter is in the following terms:

1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave

C) The CJEU Decision 

In a judgment drawing heavily on social policy the CJEU made the following observations:

(i) A restrictive analysis of the scope of the WTD was not to be adopted (paragraph 32); (ii) It was important that Article 22 WTD imposed a record keeping obligation on the employer (paragraph 34); (iii) In order to ensure that the WTD is fully effective states must ensure that minimum rest periods are observed in full (paragraphs 40-2); (iv) As the employee is the weaker party in the employment relationship then the WTD must be interpreted in a manner to avoid the rights thereby conferred from being eroded (paragraph 44); (v) Allowing oral evidence as to hours worked is an insufficiently objective and reliable source of recording working hours as the employee as the weaker party may be unwilling to give the same (paragraph 54-5); (vi) The same analysis applied as regards the ineffectiveness of national enforcement bodies (paragraph 57);

(viii) Costs imposed on employers are not a relevant consideration (paragraph 66).

The CJEU expressed its conclusion thus:

“60. Consequently, in order to ensure the effectiveness of those rights provided for in Directive 2003/88 and of the fundamental right enshrined in Article 31(2) of the Charter, the 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.” (my emphasis)

Thus the CJEU interpretation of the WTD is that all employers (irrespective of size or administrative resources) are obliged to keep objective, reliable and accessible records of the hours of work and rest breaks of all of their employees. The precise meaning of those terms is a matter for the Member State as stated by the CJEU as follows:

“63. Nevertheless, in accordance with the case-law recalled in paragraph 41 above, it is for the Member States, in the exercise of their discretion in that regard, to determine, as the Advocate General has stated in points 85 to 88 of his Opinion, the specific arrangements for implementing such a system, in particular the form that it must take, having regard, as necessary, to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings concerning, inter alia, their size, and without prejudice to Article 17(1) of Directive 2003/88, which permits Member States, while having due regard for the general principles of the protection of the safety and health of workers, to derogate, inter alia, from Articles 3 to 6 of that directive, when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves.”

D) Where Does that Leave the Working Time Regulations 1998 (“WTR”)?

Regulation 9 WTR reads as follows:

Records 

9.  An employer shall—

(a) keep records which are adequate to show whether the limits specified in regulations 4(1) and 6(1) and (7) and the requirements in regulations 7(1) and (2) are being complied with in the case of each worker employed by him in relation to whom they apply…

As drafted Regulation 9 only requires an employer to record whether the weekly working time limits and the night work limits are being complied with. It does not address daily or weekly rest and it does not specifically require all hours of work to be recorded. Health and Safety Executive guidance states that specific records are not required and that employers may be able to rely on existing records maintained for other purposes, such as pay, in order to meet their Regulation 9 obligations. Plainly the WTR as drafted do not fully implement EU law (as interpreted in CCOO) and thus one can envisage early litigation seeking a conforming interpretation of the WTR as in e.g. Lock-v-British Gas.

E) Conclusion

Thus once again the provisions of the WTR appear likely to be found improperly to give effect to the wording of the WTD. Further until such time as the UK Government seeks to legislate to define or derogate from the requirements of the WTD in this regard (an unlikely occurrence in the current Brexit-induced legislative malaise) then all employers of all sizes are fixed with an obligation to record the working hours and breaks of all of their employees and do so in a manner that is to be viewed as objective, reliable and accessible.