Last reviewed 19 June 2019
The Court of Justice of the European Union (CJEU — formerly known as the European Court of Justice) recently ruled in a Spanish case, Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE ( Case c-55/18), that, in order to comply with the provisions of the Working Time Directive (“the directive”) on maximum weekly working time and daily and weekly rest, Member States of the European Union (EU) must require employers to establish an “objective, reliable and accessible” system for recording actual working time for workers.
The Court stated that this obligation is essential to ensure that workers (and employees) enjoy the rights conferred on them by the directive and, further, that the cost of such an exercise to record working time cannot justify a failure to comply with what is a health and safety requirement.
This decision will have a potentially significant impact on many EU jurisdictions. What about the UK?
Entitlements under the Working Time Regulations in the UK
The Working Time Regulations 1998 (“WTR”) implement the EU directive into UK law. Under these regulations, workers and employees in the UK are entitled to the following.
A rest break at work of not less than 20 minutes where the daily working time is more than six hours.
A daily rest period of at least 11 consecutive hours in each 24-hour period.
A weekly rest period of not less than 24 hours in every seven-day period (alternatively, an employer may average the rest period over a 14-day period by two uninterrupted rest periods of 24 hours or one uninterrupted 48-hour period).
A worker may sign a voluntary opt-out from the from average weekly working hours; this opt-out does not extend to rest breaks.
Present record-keeping requirements in the UK
Under Regulation 9 of the WTR employers are required to keep “adequate records” to show that maximum weekly working limits and limits on night work are being observed, as well as records of those who have opted out of the maximum weekly working time. This requirement does not cover daily or weekly rest and it does not specifically require all hours of the week to be recorded. Indeed, the guidance from the Health and Safety Executive (HSE) — responsible for enforcing certain parts of the WTR — states that particular records are not required and that employers can meet their Regulation 9 obligation from existing records, such as those used for details of pay.
Impact of CJEU’s judgment in the UK
It appears that the CJEU’s judgment in this Spanish case raises doubts as to whether the WTR complies with the directive’s requirements. This would be for a court to decide. And Member States are obliged to interpret national law in a manner that is consistent with CJEU — the so-called “purposive” interpretation.
It is suggested, however, that this is unlikely to happen in the short term for the following reasons.
It is doubtful if Parliament will focus on the issue in the near future; it is fully taken up with Brexit and its aftermath. Legislation to amend the record-keeping of working time is not a present political priority.
The Government has consistently stated that CJEU decisions made before Brexit (currently dated at 31 October 2019) will continue to bind courts after the UK leaves the EU. Much will depend on the terms on which the UK leaves the EU.
However, and again in the context of Brexit, it is not clear how the EU Commission would bring infringement proceedings against the UK for failing to amend the WTR in the light of the CJEU’s judgment,
Individual workers and employees do not have the right to complain about a failure to comply with Regulation 9. This responsibility lies with the HSE and local authorities. The HSE is likely to issue new guidance at some point in reaction to the CJEU’s judgment but there are no indications of any immediate judicial action from these bodies against employers who are not complying with the new record-keeping requirements.
What should employers do?
Nevertheless, simply because action does not seem to be required in the short term does not mean that employers should not respond positively to the judgment.
They should certainly continue to comply with the record-keeping requirements of Regulation 9 of the WTR.
They should consider any revised guidance from the HSE when it is issued.
They might consider how they could implement a practical and cost-effective system to record objectively all their workers‘ daily working hours.
In summary, it is unlikely that the current Conservative administration will extend the WTR to impose onerous record-keeping responsibilities on UK employers; a different government, however, may adopt a different approach. The impact of the CJEU’s decision in the UK is likely to be felt in the longer rather than the short term.
Seek further advice
For bespoke help on employment issues, call our specialist advisory helpline on 0844 561 8149.