Do employers really need to keep a record of all working time?
Do employers have to keep records of the actual hours their employees work in order to properly fulfil their obligations under the Working Time Directive 2003/88/EC? Most employers have never considered such stringent record keeping to be necessary, but Advocate General Pitruzzella has just rocked that boat.
A Spanish trade union brought a group action* against Deutsche Bank SAE seeking a declaration that the bank is under an obligation to set up a system to record the actual number of hours worked each day by its employees. The union’s intention is to make it possible to check that the working times laid down in legislation and collective agreements are being properly adhered to. The union takes the view that the general obligation to record actual working time exists under Spanish law but also under the Directive.
The bank’s system only enabled employees to record absences for full working days (annual leave, sick leave etc.) but did not record the actual working hours on a particular day. The bank argued that there was no obligation to record all working hours but that only overtime had to be recorded.
The Spanish National High Court referred a number of questions to the European Court of Justice (ECJ), including, among other things, whether the failure of national law to require employers to set up a system for recording actual daily working time breached the relevant provisions of the Directive. A recent opinion issued by Advocate General Pitruzzella concluded that, where there is no system for measuring the number of hours worked, there can be no guarantee that the time limits laid down by the Directive will actually be observed or that workers will be able to exercise their rights. Further, the absence of such a system makes it more difficult for workers to obtain protection from the courts of the rights provided by the Directive, as they are deprived of essential evidence.
Advocate General Pitruzzella stated that in order to comply with the duties under the Directive, national law must require employers to keep records of actual time worked by workers. The Advocate General’s opinion is not binding but, generally, the ECJ does tend to follow it.
In the UK, Regulation 9 of the Working Time Regulations 1998 requires employers to keep ‘adequate records’ to show whether the weekly working time limits and the night work limits are being complied with. However, the Regulations do not cover daily or weekly rest and do not specifically require all hours of work to be recorded. Further, Health and Safety Executive guidance states that specific records are not required and that employers may be able to rely on existing records maintained for other purposes, such as pay, to comply with the obligations of Regulation 9.
If the ECJ adopts the Advocate General’s recommendation then there may be a question over whether UK law complies with the Directive’s requirements. Having said that, with Brexit just over a month away the future relationship between the UK and the ECJ is unclear, and.it may be the case that the Advocate General’s opinion never actually applies to the UK. Implementing new systems to record every minute of an employee’s day will likely come at a significant cost for most employers. Given the political uncertainty over the next month, as with most things EU-related a wait and see approach may be the best course of action for employers.
* Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (Case C-55/18) (2018/C 152/10)