The European Court of Justice (ECJ) has held that member states must require organisations to set up an objective, reliable and accessible system that records the full duration of time worked and not just overtime hours.
In the case of Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE, Spanish trade unions had brought an action against Deutsche Bank which had later been referred to the ECJ. The unions argued that the Working Time Directive, which outlines European law on working time, placed an obligation on the Bank to introduce a system that recorded the actual number of hours worked each day by full-time employees. The Bank had complied with Spanish law that required them to record overtime hours.
Commenting on the case, the Advocate General’s opinion was that the Directive did require organisations to record the actual number of hours worked each day for those who had not expressly agreed to work overtime. In his view, without such a system, there could be no guarantee that all the limits laid down by the Directive would actually be observed.
Whilst the Advocate General’s opinion is non-binding, the ECJ has since confirmed that such a system is necessary to ensure the effectiveness of working time rights. The Court explained that this is because the number of hours worked each day and each week is necessary to establish whether the maximum weekly working time and rest periods have been complied with. If there is a system that records the time worked each day, it will provide proof of whether these rights have been breached alongside being used by organisations, such as the Health and Safety Executive, to verify compliance.
Although this is a European ruling organisations should remember that, as it has taken place prior to Brexit, it remains binding on UK law. In the UK, the Working Time Regulations 1998 require organisations to keep and maintain ‘adequate’ records that demonstrate compliance with the 48-hour average working week and night work. There is currently no legal requirement to keep records in relation to rest breaks and rest periods.
The ECJ concluded that it will be for each Member State to define the specific arrangements for recording working hours, including the form this must take. Whilst it remains to be seen what changes the UK government will make in light of this decision, organisations are encouraged to review their working patterns and shifts to ensure staff are receiving the correct entitlement under working time rules. There may be certain workplace practices, such as answering emails from home, that are preventing employees from having their required daily rest period for example. In line with the judgment, organisations can review their current recording systems and start documenting working hours of their workforce.
As a reminder, working time continues to be one of the areas that is mooted to be amended once the UK leaves the EU.