Should an employer keep records of hours worked to fulfil its obligations under the Working Time Directive?

Should an employer keep records of hours worked to fulfil its obligations under the Working Time Directive?

The Working Time Directive (WTD) requires employers to take steps to protect the ‘safety and health’ of their workforce by, for example, allowing them to take paid holiday, providing them with rest breaks and monitoring the hours that they are required to work.

In the case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (DBS), the Court of Justice of the European Union (CJEU) had to decide whether, in order to comply with these obligations, it was necessary for employers to record the number of hours their employees worked. 

Background to the Case:

The CCOO, a Spanish trade union, sought a declaration to establish whether DBS was under an obligation to record all hours worked by employees on a daily basis. The CCOO contended that DBS did not have a system in place for recording daily working hours and sought a declaration that this was contrary to the WTD.

When considering the case earlier this year, Advocate General Pitruzzella had determined that the WTD did require employers to keep records of this nature. The CJEU agreed with AG Pitruzzella and declared that this was a requirement of the WTD.

The CJEU recognised that, without a mechanism for recording working time, the effectiveness of the WTD would be undermined as it would be problematic to determine “objectively and reliably, either the number of hours worked by the worker [or] when that work was done”. The court went on to state that:

 “In those circumstances, it appears to be excessively difficult, if not impossible in practice, for workers to ensure compliance with the rights conferred on them by Article 31(2) of the Charter [of Fundamental Rights maximum working hours] and by [the Working Time Directive]” if this has not been carried out.

This judgement highlights that in order to transfer the Working Time Directive into national law, a member state must require employers to keep records of all hours worked. Currently, the Working Time Regulations 2006, (‘WTR’) which incorporate the WTD into UK law, do not include this requirement and, therefore, do not fully comply the WTD.

Employers are strongly encouraged to implement a system for recording workers’ hours on a daily basis. This could include, for example, some form of ‘clocking in and clocking out system’, or requiring employees to tick a box when logging on and off from their computers. Any system will need to be practical and simple in its implementation and different solutions will be required depending on the nature of the organization concerned. Businesses that do not have such a system in place run the risk of employees arguing, amongst other things, that their working hours are in excess of the WTR maximum and/or that they are being denied rest breaks. 

If you have any questions about this case, the WTR or any employment law issue, please do not hesitate to contact Debbie Sadler on 01494 478671 or at djs@blasermills.co.uk.