In Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, the European court of Justice (ECJ) ruled that employers must set up a system for recording daily working time for individual workers. This is in order to comply with the provisions of the European Working Time Directive and the European Charter of Fundamental Rights on maximum weekly working time and daily and weekly rest breaks.
The European Charter of Fundamental Rights (the Charter) and the European Working Time Directive (WTD) provide for limits on weekly working hours and give workers the right to daily and weekly rest breaks. National law must implement the requirements of the WTD; in the UK, this is done by the Working Time Regulations (WTR).
With regard to maximum weekly working hours (and night work limits), the WTR provide that employers must keep ‘adequate’ records to demonstrate compliance.
There is no specific requirement under the WTR to record the number of hours worked each day by each worker. This is also the case under Spanish legislation.
A Spanish workers’ union brought a group action claim against their employer, Deutsche Bank SAE, in the National High Court in Spain. The union argued 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, even though there was no specific Spanish legislation requiring it to do so. It claimed that this was necessary to enable checks that the working time limits and right to rest breaks under national law were being complied with.
The Spanish court passed to the ECJ the question of whether the WTD and/or the Charter imposes such a record keeping obligation.
The ECJ ruled that member states (which, for now, of course includes the UK) must require employers to set up systems for recording daily working hours, so as to ensure that workers benefit from the limits on weekly working hours and the rights to rest breaks under the WTD and the Charter. In the absence of such a system, it would not be possible to determine the number of hours worked and when that work was done.
The ECJ referred to the need for an ‘objective, reliable and accessible system’ enabling daily working time (including overtime hours) to be measured. However, it said that it would be for the particular member state to define the specific arrangements for implementing the system (having regard to the characteristics of the sector or undertaking).
It seems that the WTR record keeping provisions in the UK would now have to be interpreted in line with EU law and this ECJ decision has therefore not been welcomed by employers. However, the fact that there seems to be limited recourse for workers in this area may be of some comfort. An individual worker would not be able to make a claim for the employer’s failure to keep adequate records; it would be up to the Health and Safety Executive (HSE) to pursue this.
Given the above, and the fact that the HSE has to-date taken a fairly relaxed approach to records of working time, we do not anticipate employers rushing to put in place new systems for recording daily working hours for all their workers. Indeed, they may decide to wait for some guidance from the HSE (if not for a change in UK legislation), particularly since the ECJ decision gives member states some discretion about what is expected in terms of recording systems.
Nevertheless, Make UK think it would be sensible for employers to scrutinise the extent of their current record keeping, including whether this amounts to an objective system for capturing daily working hours and whether any improvements can be made. For example, employers dealing with hourly paid workers will presumably be recording daily working hours for those individuals already, whereas they may have different ways of keep track of salaried employees’ hours.
While exploring more robust systems for recording working hours, employers should consider the benefits of knowing more about when and how long their staff work. Having this information accessible could flag up workload or performance problems, which could ultimately help employers manage their workers better, and in some cases help avoid legal claims (including in relation to health and safety and the WTR).
There is also a ‘wellbeing’ aspect to recording daily working hours; excessive hours can be a red flag that an individual or team is not completing work in normal hours. Once the employer is aware of this, they can investigate the possible reasons and take action to address it. There could be a number of reasons that an individual or team is working excessive hours. For example: Is the team understaffed? Has a long hours culture developed? Is an employee struggling with the job because of health, stress, or personal issues? Or might they be at risk of developing health problems if their pattern of work continues?
How we can help
Our HR Consultants can assist with implementing working time recording systems in your business – please contact Sharon Broughton, Head of HR Consultancy, for further details SBroughton@makeuk.org.
We can also help you look at improving employee wellbeing through awareness and control of the hours that your staff are working. In our forthcoming Managing ill health, tackling absence, promoting wellbeing seminars, we explore wellbeing initiatives to create a working environment that engages and energises your staff, and helps to avoid issues of presenteeism (employees coming to work even though they are unwell because they do not feel able to take time off) and leaveism (employees working outside their normal hours in order to meet deadlines, but trying to conceal this from management). Such wellbeing initiatives are not just beneficial for employee engagement – they can also bring benefits to your bottom line by increasing productivity. The seminars will be running at a venue near you in June and July. Please click here for further details.