The Working Time Regulations entitle workers to minimum paid leave, a maximum working week of 48 hours (subject to any opt out in place), rest breaks between shifts and to a minimum weekly rest period. The Regulations implement the European Working Time Directive 2003/88/EC which was originally designed as a health and safety measure but has important implications for employment law. If challenged, an employer needs to show that they have retained records of hours worked by staff so that they can prove they have complied with their legal obligations. Following a recent judgement issued by the European Court of Justice, doubt has been cast on whether the UK Regulations adequately implement European law. This calls into question whether the quality of records UK employers currently need to keep about working hours are as comprehensive as they need to be.
Following a referral by the Spanish National High Court, the ECJ was asked to consider aspects of the equivalent implementing laws in Spain. In its judgement issued on May 14th 2019 in the case Federacion de Servicios de Comissiones Obreras (CCOO) v Deutsche Bank C-55/18 the court considered whether Deutsche Bank was required to have a system of record-keeping to document all the time worked by its employees. At the time of the judgment, the only records Deutsche Bank had by way of working time was an absence calendar, recording holidays, absences and so on. Further, Spanish law had previously only required that a record of overtime be kept and that this be communicated to workers or their representatives on a monthly basis.
In its judgment, the ECJ concluded that the protection of the health and safety of workers was being compromised since there was no way that Spanish law could provide an effective protection of employees’ rights through guaranteeing an objective and reliable means to determine daily and weekly working hours. The Court emphasised that “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."
Under the applicable UK Working Time Regulations, an employer is under an obligation to keep records for a period of two years. However, these records must only show, except where agreed otherwise, that the time worked has not gone beyond an average of 48 hours a week. This is assessed over a reference period of 17 weeks, to take account of the sort of fluctuations that can occur in certain sectors and which might otherwise distort the overall picture. Further records are required to be kept in relation to young workers and those doing night work as they are seen as being particularly at risk.
What is notable in Deutsche Bank is the emphasis on a need for daily records of time worked to be kept. So an average, taken over a long reference period would almost certainly not be sufficient. While employers might try and argue the cost of putting in place a better and more accessible system for record keeping could be prohibitive, those who employ hourly paid staff in particular, will already have most of this information available, even though they may not currently do much with it beyond calculating payroll from week to week or at the end of a month. Regardless, the Court in Deutsche Bank emphasises the effective protection of health and safety of employees cannot be subordinated to purely economic considerations.
Chris Phillips is a Partner in our specialist Employment Law team. For advice on how this decision may impact on you organisation or any aspect of UK employment law, contact a member of the employment team.