Must an employer keep a record of actual time its employees work?
The Working Time Regulations 1998 (“WTR”) require employers to maintain records which ‘adequately show’ that:
- Working time does not exceed an average of 48-hours per week, for those employees who have not opted out; and
- The limits on night working have not been exceeded.
The WTR do not specifically require all hours of work to be recorded; merely that the above limits are being complied with. Further, when it comes to breaks, the WTR remain silent on whether daily and weekly rest should be recorded. Guidance given by the Health & Safety Executive states that specific records are not required, and an employer can rely on other records, such as pay records.
However, the recent decision by the European Court of Justice (ECJ) in the case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE has cast serious doubt on whether this is correct.
CCOO are a trade union in Spain. They brought a group action against Deutsche Bank. CCOO sought a declaration that Deutsche Bank were under an obligation to set up a system to record the actual number of hours worked daily by its staff, so that it was possible to check that the working times laid down by the European Working Time Directive were properly adhered to. Deutsche Bank did not record hours worked on a particular day.
The Spanish court asked the ECJ whether the Directive imposes such an obligation.
The ECJ held that the Directive required employers to record actual hours worked.
The ECJ noted that the fundamental right of every worker to limit their maximum working hours and the right to daily and weekly rest periods is enshrined in the Directive. Member states are obliged to implement the measures necessary to ensure that workers benefit from those rights. The ECJ commented that workers must be regarded as the weaker party of the working relationship, therefore it is necessary to prevent the employer from being able to impose a restriction on those rights.
The ECJ considered that if there was no system for recording the actual hours worked each day by each worker, it was not possible to determine, objectively and reliably, either the number of hours worked or when that work was done. The ECJ commented that “in those circumstances, it appears to be excessively difficult, if not impossible in practice, for workers to ensure” that their rights were complied with.
The ECJ went on to say that a national law that did not require a system for recording actual hours worked, failed to guarantee the effectiveness of workers’ rights under the Directive and could compromise the Directive’s objective of protecting the health and safety of workers.
The ECJ ruled that, in order to ensure the effectiveness of those rights, member states and employers are obliged to set up “an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured.” It was for member states to define the specific arrangements for implementing such a system.
The judgment suggests that the WTR fails to implement the Directive. Thus, the government will have to amend the WTR to avoid the risk of a claim that they have failed to implement the Directive. Of course, whether they do so will very much depend on the outcome of Brexit, about which there remains considerable uncertainty.
Where a worker has been denied their rights under the WTR, they can bring a Tribunal claim and, at least until our future relationship with Europe is determined, the Employment Tribunal will need to interpret the WTR to give effect to the Directive.
Failing to keep relevant records or merely relying on the contract of employment stipulating the hours of work and any breaks, will not be enough.
Therefore, if an employer does not have in place an “objective, reliable and accessible system” recording all hours worked, it may be harder to defend a claim that working time limits and minimum rest breaks have been complied with.