In this case (Federacion de Servicios de Comisiones Obreras v Deutsche Bank) a Spanish trade union sought a declaration that Deutsche Bank in Spain was required to comply with the Working Time Directive (WTD). The Spanish Court referred this question to the European Court of Justice (ECJ)

The ECJ found that the WTD gave effect to rights entitling workers to limits on weekly working hours and to daily and weekly rest periods. The rights that were supposed to be enshrined in the Directive could not be “lost in translation” when implemented in Member States. If the requirements in local legislation fell short of compelling employers to afford the workers such rights, then that legislation had to be amended.

The ECJ considered that local legislation would fall short of what was required if it did not provide a system to measure employees’ daily working hours. Without such a system, there would be no way for employees or regulators to verify that relevant limits had been complied with, meaning that employees would be unable to check that their rights had been respected and businesses could escape regulatory action to protect health and safety. A system recording daily hours worked for each employee would provide a means of objective verification that limits had been respected. However, the ECJ left it up to each Member State to decide on the most appropriate system to achieve this.

In the UK, the Working Time Regulations (WTR) oblige employers to keep adequate records of compliance with limits on weekly working time and night work. However, there is no requirement to record the daily number of hours actually worked, or the rest breaks taken. As such the WTR fall short of what it is required as a result of this case.

On the face of the matter, there is no need for UK employers to act immediately, as the UK government now needs to amend the WTR to ensure it is in line with the new case law by requiring employers to keep records of hours worked. Whether or not this is actually done will depend on whether and on what basis the UK continues to be a member of the EU. In theory at least, for the time being employer obligations remain unchanged.

It should be noted that many UK employers ask their employees to opt out of the limit of weekly working hours (although the rest breaks and night time working provisions still apply in such circumstances). It remains to be seen how the British Government will deal with record keeping obligations for employees who have opted out.

Enforcement of the record-keeping requirements under the WTR is through the Health and Safety Executive (HSE) –  an individual worker does not have the right to pursue a claim in the Employment Tribunal against his or her employer for a failure to keep adequate working time records. However, without the granular data provided by a record of all hours worked, employers may find it harder to defend a complaint to the HSE that working time limits and minimum rest breaks have not been complied with.

In addition, even though the WTR do not currently contain an obligation to keep such records, there is potential for an employee to complain about an employer’s failure to keep records in line with the ECJ case law in any event, as UK public bodies such as the HSE and UK courts are bound to apply the ECJ’s decision/interpret the UK law in accordance with it. If you would like future information about how this may affect your business please contact one of the team.

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