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Case law: EU court confirms UK employers must record workers’ daily hours

UK employers who do not already do so should start recording workers’ actual daily hours to ensure they comply with the EU Directive on working time, following a ruling of the Court of Justice of the European Union (CJEU).

June 2019

This update was published in Legal Alert - June 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.

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, they 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 said that this was the correct interpretation of the EU Directive on working time which Spanish law was supposed to follow.

It argued 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, such as those restricting the maximum hours worked by a worker each week to an average of 48 hours, and requiring workers to take sufficient rest breaks.

The Spanish court referred the question of how to interpret the EU Directive to the CJEU, so it could decide whether Spanish law complied.

The CJEU has now ruled that the Directive requires employers must record the actual daily number of hours worked by workers. It seems that this applies to all workers, including those whose time is not measured or workers who have opted out of the maximum working week. The CJEU clarified that national laws must require employers to set up ‘an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured’.

This is relevant to UK employers because UK working time laws (which is based on the same EU Directive) currently requires employers to keep ‘adequate’ records demonstrating that:

  • each worker’s hours (including overtime) are not more than an average of 48 hours per week (unless the worker has opted out of the 48-hour restriction on working hours); and
  • restrictions on hours worked at night have been observed.

It does not state what form such records must take, although HSE guidance says records kept for other purposes (such as to calculate pay) can also double up as records for this purpose.

UK law also says employers must 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, UK law does not specifically require UK employers to record the daily number of hours actually worked by workers.

The CJEU’s ruling therefore means UK law does not comply with the EU Directive in this respect. Employers should nevertheless operate on the basis that it does, and start keeping the necessary records to comply with the Directive.

Operative date

  • Now

Recommendation

  • UK employers who do not already do so should 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

Please note: An article published in the March 2019 edition of Legal Alert covered this case at an earlier stage in the legal process.

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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