Earlier this year, the European Court of Justice (ECJ) found that employers must record workers’ daily working time to ensure compliance with the Working Time Directive, EU legislation guaranteeing certain rights for workers and setting out requirements relating to working hours, rest breaks and annual leave.
The WTD is implemented in the UK as the Working Time Regulations 1998. Under Working Time Regulations 1998 there is currently no obligation on employers to implement a system that specifically records employees’ working time.
In Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (DB SAE), however, CCOO (a Spanish union) wanted confirmation that DB SAE was obligated to set up a system that recorded workers’ actual working hours each day to ensure Working Time Directive compliance.
The ECJ found that without a recording system it would be difficult, if not impossible, to reliably measure the daily hours being worked. To guarantee the effectiveness of workers’ rights, the ECJ ruled 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.”
A recording system would allow workers to access reliable and objective data around the hours they had worked, as well as ensuring employers comply with Working Time Directive obligations and helping resolve potential disputes.
No specific recording system is required under the UK Working Time Regulations 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.
In CCOO v DB SAE, the ECJ commented that it would leave it to member states to determine the specific arrangements for implementing such a system.
Questions are now being raised about whether the Working Time Regulations 1998 complies with the Working Time Directive. Employers will recall the consternation when the ECJ ruled that entitlement to normal pay for the Working Time Directive holiday entitlement had to include ‘normal’ overtime, contrary to the UK Working Time Regulations, which excluded it. In short, the Working Time Directive trumped the Working Time Regulations.
How matters will develop is currently uncertain, but prudent employers should consider how confident they are their systems can objectively, reliably and accessibly measure the working time of each worker day by day, assessing their potential risk exposure as a result.
Carol Shaw is director and head of employment law at Spratt Endicott