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Are employers now required to keep records of everyone’s working time?

31 May 2019

Question marks

The recent case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE made headlines across Europe as well as here in the UK. This is because the European Court decided that it was necessary for employers to have a system to record the amount of time worked by each of its workers. The decision has significant implications across the EU, and understandably many employers have been very concerned. We look at what the decision means for the UK and what employers need to do as a result of the ruling.

What does UK law say?

In the UK, the Working Time Regulations 1998 (WTR), which give effect to the European Working Time Directive, entitle workers (amongst other things) to:

  • a daily rest period of not less than 11 consecutive hours per 24 hour period
  • a weekly rest period of 24 hours per 7 day period
  • a rest break of an uninterrupted period of not less than 20 minutes if the worker’s working time is more than six hours
  • a 48 hour limit on the average weekly working time (unless the worker has signed an opt-out agreement)
  • special provisions for night workers

Although the WTR require employers to keep adequate records showing that the limits on average working time and night work are being complied with, they do not currently require employers to record a worker’s actual working hours to show that the rules around daily and weekly rest periods are being met.

There are of course many situations where workers’ hours are clearly defined, such as by rotas or shift patterns, and particularly when staff are hourly paid. However, there are many more instances where working hours are not currently being formally recorded, such as salaried staff and those who work remotely – and it is those situations that the CCOO case will affect the most.

What was the decision in the case?

According to the European Court’s 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 to be measured”. The Court’s reasoning was that if there was no such requirement then it would not be possible to determine “objectively and reliably either the number of hours worked by the worker [or] when that work was done”.

This does make sense – how can an employer demonstrate that the rules are being followed if there is no requirement for working hours to be recorded? However, it does not fit with the way that many businesses work at the moment in many European countries.

What does this mean for the UK?

As keeping records of everyone’s working hours is not something which is currently required under the WTR in the UK, our law is therefore not compatible with the Court’s interpretation of EU law. Therefore, the government would need to amend the WTR (or decide to derogate from the requirement), otherwise it will risk claims against it on the basis it has failed to properly implement the Working Time Directive into UK law.

It is also not clear yet whether it may be relevant that UK law contains the ability to opt out of the 48 hour limit on the working week, which is not the case in some other European countries.

And of course we can’t ignore Brexit. At the time of writing the UK is still a member of the EU, however there is of course a great deal of  uncertainty around whether we will leave the EU with or without a deal, what the terms of a deal might be, and the extent to which we will continue be bound by the European Court’s rulings after we leave.

What should employers do now?

Despite the headlines, it does not mean that employers are immediately bringing in systems to record working hours for all their staff. However, in the longer term, it may be worth considering this in your future planning.

For now, most employers are adopting a ‘wait and see’ approach, as the judgment is still very new and it is not yet clear exactly what all the practical implications might be in this country. It is definitely something to watch though, and we will of course keep you updated on any developments via our future articles.

If you have queries about working hours, then please do get in touch. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

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