The European Court of Justice has ruled that, in order to comply with EU legislation, member states must require employers to establish systems enabling workers’ daily working time to be measured. This goes far beyond current obligations on employers under the UK’s Working Time Regulations.
In Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE, a Spanish workers’ union sought a judgment against Deutsche Bank that the bank had an obligation to set up a system to record the daily working time of each staff member in order to comply with Spanish working time legislation and the requirement to provide union representatives with monthly overtime information. The union claimed that the working time that was actually recorded by the bank was inaccurate and insufficient and so the bank was not complying with its obligations. The bank asserted that it was under no such specific obligations. The Spanish National High Court referred the matter to the European Court of Justice (ECJ).
The ECJ held that in order to comply with working time legislation employers must be required to establish an “objective, reliable and accessible system enabling the actual duration of time worked each day by each worker to be measured”, although it is for each EU member state to define the particular arrangements necessary for employers to implement the systems.
The ECJ noted that workers’ rights to rest periods and a limit on average weekly working hours are enshrined in EU law and without a system enabling actual daily working time to be measured it is impossible to objectively and reliably determine whether workers’ rights are complied with.
This will raise concerns among employers in the UK where the obligation is merely to keep “adequate records” which show whether limits on weekly working time and night work are complied with. That obligation does not extend to recording rest periods and many employers rely on other records for this purpose, such as payroll data.
In the UK workers do not have a right to complain about their employer’s alleged failure to keep the appropriate working time and rest break records, although any such failure might be relevant in a constructive dismissal or personal injury claim. In the UK the Health and Safety Executive enforces working time issues and its current guidance (predating this decision) states that specific records of daily working hours and rest periods are not required. This ruling suggests that merely keeping “adequate records” will not be sufficient to comply with EU law.
Given the Government’s current preoccupation with Brexit it is unlikely the Working Time Regulations will be amended any time soon to bring them into line with the EU Working Time Directive. However, it would still be sensible for employers to watch out for revised guidance from the Health and Safety Executive and to begin to consider how a system which measures working time and rest breaks could be most effectively implemented within their organisation. In some industries, such as logistics where technology is already widely used to determine work patterns, this may be easier than in others.