European court tells employers to properly measure the length of time their staff are working

The Court of Justice of the European Union (CJEU) has today handed down an important judgment about working time in the case of CCOO v Deutsche Bank SAE.

As a result, UK employers may have to take steps to ensure their staff are not exceeding the 48 hour maximum working week and are taking adequate rest breaks.

Facts

The case was brought by a Spanish Trade Union (CCOO). It wanted a system for recording how long its members worked each day (including the number of hours worked overtime) so that it could verify these complied with their stipulated working conditions.

Under Spanish law, employers only have to provide a record of overtime hours worked by each worker - rather than all hours actually worked. The court was given evidence that these records were not accurate and that 53.7% of all overtime worked was not recorded.

Decision

The CJEU made it clear that all workers had a fundamental right to limit their working hours and to take adequate rest to protect their health and safety. It said that the only way to ensure that these rights were met was to accurately record the number of hours worked, when that work was done and the number of hours of overtime worked. 

According to the judgment 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". It said that this information will help workers (and those representing them) to understand if their rights have been breached and to assist "competent authorities" and national courts to enforce those rights.

This appears to apply to all workers - even those whose time is unmeasured, or in the case of UK workers, those who have opted out of the maximum working week. 

Relevance to UK employers

This decision is binding in the UK and may affect those employers who do not accurately record the numbers of hours their staff work - whether these are paid or unpaid. 

Under Regulation 9 of the Working Time Regulations 1998, employers have to keep "adequate" records to show that workers are not working in excess of 48 hours a week and the rules around night work are complied with.  They don't explicitly require employers to record data to show that daily and weekly rest periods are met.

Records have to be kept for at least two years. 

These rules are enforced by the Health and Safety Executive. Employers that breach them can be prosecuted and fined. Employees can also rely on WTR breaches to support employment claims such as constructive unfair dismissal or personal injury claims.

Where possible, employment tribunals and courts have to interpret our legislation, in accordance with CJEU decisions and European laws.  This means that employers can't ignore the decision - even if the government doesn't change the Working Time Regulations.

Guidance published by the Health and Safety Executive states that employers don't need specific records for most types of workers and can rely on existing records maintained for other purposes, such as pay.  This decision puts that guidance in doubt. However, we don't think that the HSE would pursue a claim against an employer for failing to record the hours worked each day by each worker without first giving advance notice, for example, by new guidance.

As our future relationship with the EU is still uncertain, you may chose to wait and see before making any changes. But, if you are looking at recording the working time of your staff you must use an "objective" and "reliable" system that reflects all hours your staff work - not just those set out in their contracts of employment.

Cost is not important!

This may cause headaches (and additional cost) if your organisation doesn't already have systems in place that can capture this information.  The CJEU said that employers can't avoid taking these steps simply because they are too expensive to implement. 

Need more information?

Our employment partner Sybille Steiner can help your organisation put in place proper systems to make sure you stay the right side of the law.

Our fixed price employment law service

If you are interested in finding out about how we can support you with our fixed-fee annual retainer, or flexible discounted bank of hours service, please contact Rachel Hetherington: rachel.hetherington@irwinmitchell.com or: 44 (0)121 203 5355 for a no obligation quote.