Written by Brabners LLP
The Court of Justice of the European Union (CJEU) has recently confirmed that employers need to have systems in place that record the hours worked by an employee each day so they can monitor compliance within a week.
In the case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (the Deutsche Bank case), the CJEU considered the need for employers to have records of hours worked. The court not only commented on working time issues, but also the mental well-being of employees and Brexit! Read on for more details about this case and useful learning points that employers should be aware of.
Working time – the current position
In the UK, the Working Time Regulations 1998 confirm that employees and workers cannot be required to work more than 48 hours per week on average unless they have chosen to ‘opt out’ of this legal requirement. The Working Time Regulations are derived from European legislation (namely the Working Time Directive) and implement a number of its requirements here in the UK.
As you may know, these Regulations were put in place for health and safety reasons. The Regulations ensure that employees and workers are legally entitled to rest breaks, paid holidays and more. The aim is to encourage employees to rest and take time off, which in turn contributes to good mental well-being.
Currently, the Working Time Regulations confirm that employers must keep ‘adequate records’ which show that they are complying with weekly working time limits and night work limits
The Deutsche Bank case
One of the trade unions in Spain brought proceedings on behalf of its members against Deutsche Bank, asserting that the bank did not have a system in place to monitor how many hours its employees were working and it was in breach of its legal obligations. The CJEU was then asked to consider this important issue, after a referral was made to them from the Spanish courts.
The Union sought a declaration that Deutsche Bank was in breach of its obligations to monitor and record this information. The initial opinion of the Spanish Attorney General was that, the absence of a device to record working time would reduce the effectiveness of the rights that the Working Time Directive affords to workers and means that workers will have to heavily rely upon their employer’s discretion.
In their judgment on the matter, the CJEU agreed with the above opinion. The court noted that, whilst difficulties may be faced by employers, Member States must require employers to set up an accessible system that allows the duration of time worked each day by each employee to be measured. This is to make sure that working time legal requirements are met and the fundamental rights given to employees are protected.
The judgment emphasises the need for employers to have appropriate systems in place to record working hours, including details of daily working hours. The case emphasises the importance of having regard to working time and mental health issues, including the need to reduce ‘long hours cultures’ by keeping accurate records.
Whilst the Deutsche Bank case involved Spanish law and not UK law, the CJEU did comment on the Working Time Directive and how this should be implemented by member states. Under UK law, the Working Time Regulations require employers to keep “adequate records” but do not go into detail about daily hours being measured and recorded. Following this case decision, it would be wise for employers to ensure that they are now keeping records with details of daily hours (if they are not doing so already).
As we all know, Brexit is on the horizon and the UK will no longer be obliged to follow EU law in the same way as it has previously. However, the Government has said that employment rights derived from the EU will continue to be enshrined into UK law. This means that, even when we leave the EU, it seems likely that the obligation to record working time will remain part of UK law and it would be sensible to keep daily hours records as a result.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership.