Do we need to record all employee working time? New case from the ECJ

In a recent decision which has sent ripples through HR and employment law circles, the European Court of Justice (ECJ) has held in Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE that an employer must keep records of all hours worked to fulfil its obligations under the Working Time Directive (WTD).

But what does this decision mean in practice for UK employers? And do you need to revise your current practices for recording working time?

What happened?

The CCOO, a Spanish trade union, brought a group action before the National High Court in Spain against Deutsche Bank. The CCOO sought a declaration that the bank was under an obligation to record the actual daily working time of its employees.

An Advocate General (AG) of the European Court of Justice gave an advisory opinion earlier this year suggesting that the WTD requires employers to keep records of actual time worked. As anticipated, the full Court has now agreed with the Advocate General’s opinion.

The court’s rationale was clear: if there was no requirement to keep records, it would be impossible to determine ‘objectively and reliably either the number of hours worked by the worker [or] when that work was done’. This would make it very difficult, if not impossible, for workers to ensure compliance by their employer with their obligations under the Working Time Directive (for example the limit on weekly working time and the requirement that employees must receive minimum daily and weekly rest periods).

The UK position

The Working Time Directive is EU-wide legislation with which all member states must comply. The WTD was implemented in the UK by the Working Time Regulations 1998 (WTR). All employers in England and Wales must comply with the UK Working Time Regulations.

Regulation 9 of the UK Regulations requires employers to keep “adequate records” to show compliance with the 48 hour limit on the average working week and specific protections for night workers (namely ensuring that a night worker’s normal hours of work do not exceed an average of eight hours in any 24 hour period).

The Regulations do not specifically require all employers to record daily or weekly rest breaks and do not specifically require all hours of work to be recorded.

Current guidance from the Health and Safety Executive states that employers are not required to keep specific records for Working Time Regulation purposes and you may rely on existing records maintained for other purposes, such as pay, to meet your obligations.

This Judgment means that, in order to properly transfer the Working Time Directive into national law, a member state must require employers to keep records of all hours worked. The decision therefore casts doubt on whether the Working Time Regulations, and the equivalent Regulations in Northern Ireland, have properly transposed the Directive into UK law.

Will the Government have to change the law?

In light of this case, it appears that the Government will have to amend the Working Time Regulations to make sure that the Directive is properly transposed into our domestic law, and to avoid the risk of claims against it for failure to properly transpose the Directive.

However, whether this will ultimately be necessary depends on when/if the UK exits the European Union and whether EU law remains in force in the UK. In the absence of any agreement to abide by EU law post-Brexit, the UK will no longer be obliged to transpose EU Directives into UK law after exit day. Amending the Working Time Regulations voluntarily is therefore unlikely to be high on the Government’s agenda.

Although a successful claim against the Government for failure to properly transpose the Directive, for example brought by a trade union or other interested party, might force the Government into making changes, there is unlikely to be time for this if the UK remains set to exit the EU at the end of October as currently envisaged.

What does this mean for me?

Understandably, this decision has caused concern for many UK employers. Even where detailed records are kept of employees’ contractual hours and any ‘formal’ overtime worked, some working hours may still fall through the net. For example, it is extremely difficult to keep tabs on the actual working hours of agile workers or any informal additional work that employees may choose to do at home.

However, our view is that no immediate action is needed in light of this decision. It is crucial that UK employers continue to comply with the record keeping obligations under domestic legislation (the Working Time Regulations). However, unless and until the UK Regulations are amended or successfully challenged, there is no need for employers to keep the more onerous and detailed records espoused by the European Court of Justice in this Judgment.

Any successful challenge to current UK rules on recording working time is likely to originate from the public sector, where employees may potentially be able to bypass the Regulations by arguing that the Working Time Directive has ‘direct effect’.

Going forward, it will be important to monitor any changes in best practice guidance from the HSE and any changes to how the UK Courts and Tribunals interpret Regulation 9 of the Working Time Regulations. There may be an increased focus on whether employer records are ‘adequate’ for Regulation 9 purposes and whether, in practice, these records are sufficient for UK employees to determine whether statutory working time rules are being complied with. We would be happy to advise you if you are unsure.