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Keeping records of all hours worked
Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE
European law obliges employers to establish a system enabling the duration of daily working to be measured.
Spanish trade unions brought an action against Deutsche Bank seeking a declaration that the bank was required to set up a system recording the actual number of hours (including overtime) worked each day by its employees. The bank argued that there was no such obligation under Spanish law, only an obligation to record overtime hours. Evidence was produced that over half of overtime hours worked in Spain are not actually recorded. The unions argued that such an obligation arose under the EU Charter of Fundamental Rights and the Working Time Directive (implemented in UK law via the Working Time Regulations 1998 – WTR). The Spanish Court referred the issue to the European Court of Justice (ECJ).
The court began by noting the importance of the fundamental right of every worker to a limitation on the maximum number of working hours and to daily and weekly rest periods. Moreover, member states must ensure that workers benefit from such rights.
The court went on to say that in the absence of a system enabling the duration of time worked each day by each worker to be measured, it is not possible to determine, objectively and reliably, either the number of hours worked and when that work was done, or the number of hours of overtime worked. This in turn makes it excessively difficult, if not impossible in practice, for workers to ensure that their rights are complied with.
A national law which does not provide for such a system does not guarantee the effectiveness of the rights conferred by the EU Charter and the Working Time Directive, since it deprives both employers and workers of the possibility of verifying whether those rights are complied with. Such a law could also compromise the WTD’s objective of ensuring better protection of the safety and health of workers, which is the case irrespective of the duration of the maximum weekly working time laid down in national law.
Such a measurement system would also enable workers to prove their rights were being breached and would assist the relevant authorities and national courts to enforce those rights. It is however up to member states to determine the required method of such a recording system.
Link to judgment: https://www.bailii.org/eu/cases/EUECJ/2019/C5518.html
Although the government intends that when we leave the EU all EU employment rights will be restated into UK law and so will continue to apply post-Brexit, decisions of the ECJ prior to the UK leaving will be binding.
This decision appears to impose greater obligations on employers than the WTR currently require. Currently, for those workers who’ve not opted out, UK employers must keep and maintain records that are ‘adequate’ to demonstrate compliance with the 48-hour average working week and night work (WTR, reg. 9). There is no requirement to keep records in relation to rest breaks and rest periods. Neither do the WTR specify any particular format for such recording.
Some commentators have suggested that the UK may have to amend the WTR to reflect this decision to avoid claims that the WTR do not adequately reflect EU law – although the window to make such an argument (presumably) closes when we leave the EU.