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Case law: Employers may be legally obliged to record workers’ daily hours

UK employers who do not already do so may need to start recording each worker’s actual daily hours to ensure they are complying with the EU Directive on working time, following an opinion from the Advocate General of the European Court.

March 2019

This update was published in Legal Alert - March 2019

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

Please note: A newer article on this case was published in the June 2019 edition of Legal Alert following subsequent developments in the legal process.

A bank in Spain kept records of when workers were off work for a full working day, for example, when they were on holiday or off sick. However, it did not record each worker’s actual daily hours worked.

A local trade union asked the Spanish court for a declaration that the bank should record the actual daily number of hours worked. It argued that this was the correct interpretation of the EU Directive on working time which the relevant Spanish law was supposed to follow.

It was the trade union’s case that unless the Directive was interpreted in this way, it would be impossible to check whether employers were complying with the requirements of the Directive, including those restricting the maximum hours worked by a worker each week to an average of 48 hours, and rules requiring workers to take sufficient rest breaks.

The Spanish court referred the issue to the Court of Justice of the European Union (CJEU). The CJEU’s Advocate General (AG) has now given his preliminary opinion, that the Directive does mean employers must record the actual daily number of hours worked by workers who have not specifically agreed to opt out of the limit of a maximum 48 hours of work per week that applies otherwise.

The AG said that even though the Directive did not expressly provide for such an obligation, it was ‘instrumental in and essential to the attainment of the objectives which the directive pursues and to the enjoyment of the rights which it confers on individuals’, that ‘any practice or omission by an employer that may deter a worker from exercising rights as to working hours must be regarded as incompatible with the Directive’ and that the ‘absence of a mechanism for recording working time will significantly reduce the effectiveness of the rights which [the Directive] confers on workers’.

This is relevant to UK employers because UK law, based on the same EU Directive, currently says employers have to keep ‘adequate’ records demonstrating that:

  • each worker’s hours (including overtime) are no more than 48 hours per week on average (unless the worker has opted out of the 48-hour restriction on working hours); and
  • restrictions on hours worked at night have been observed.

Though UK law does not state what form such records must take, Health & Safety Executive guidance says records kept for other purposes (such as to calculate pay) can double up as records for this purpose.

UK law also requires employers to keep a record of workers who have opted out of the rules saying workers must not work more than an average of 48 hours per week. This often comprises a list of the relevant workers’ names, and copies of their opt-out agreements.

However, nowhere in UK law does it specifically require UK employers to record the daily number of hours actually worked by workers.

This means in view of the AG’s opinion, the UK Working Time Regulations 1998 – which implemented the EU Directive - does not comply with it in this respect.

Though preliminary opinions of the AG are not legally binding on the CJEU, it usually follows them. If the CJEU does, the EU may need to amend the Directive and the UK would in theory have to implement new law to comply with the amended Directive.

In practice, whether the UK is bound to do so will depend on whether the UK and EU agree a deal and, if so, what its terms are. In the meantime, employers may want to consider taking steps to comply with the AG’s opinion as a matter of best practice.

Operative date

  • Now

Recommendation

  • UK employers who do not already do so may wish to start recording each worker’s actual daily hours to ensure they are complying with the EU Directive on working time

Case ref: Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE Case C 55/18

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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