What you need to know about record-keeping obligations under the Working Time Directive

Are the obligations under the Working Time Directive clear cut? Deutsche Bank, and potentially many other employers, would argue not. This week’s blog takes a look behind the headlines at the recent Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE case.

The law

The EU working time directive dictates that ‘employers are required to set up a system for recording actual daily working time for workers who have not expressly agreed to opt out of the maximum 48 hours of work per 7 days’ (1).

Under the Working Time Regulations 1998 in Britain, ‘employers must keep ‘adequate records’ showing compliance with maximum weekly hours worked, length of night shifts and health assessments for those transferring from night to day work. It does not specifically require the recording of rest hours or otherwise for all hours of work to be recorded’ (1).

The case

Earlier this year, the Spanish Trade union CCOO brought a ‘group action’ against Deutsche Bank before the Spanish National High Court. The trade union sought a ‘declaration that the bank was under an obligation to record the actual daily working time of its employees’ (2). Hours worked on a particular day were not recorded.

Deutsche Bank interpreted the law as the requirement to simply record overtime hours in this way and claimed to be fully compliant. Other than overtime, record-keeping only included absences such as annual leave or sickness, not daily hours worked (1).

Referring the case to the ECJ, the National High Court aimed to clarify whether it is ‘compulsory for employers to introduce systems to measure the actual duration of the working day and working week’ (1).

The decision

The court’s decision echoed the same sentiment as that of the Advocate General; that the obligation is not restricted to overtime hours and 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’ (1). It was decided that if there was no requirement to keep records, it would be impossible to determine “objectively and reliably either the number of hours worked by the worker [or] when that work was done” (2). They continued 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], with a view to actually benefiting from the limitation on weekly working time and minimum daily and weekly rest periods provided for by that directive.”

The impact

The ruling means that ‘in order to properly transfer the Working Time Directive into national law, an EU member state must require employers to keep records of hours worked’ (2). As such, amendments to the Working Time Regulations 1998 are now required to meet these record-keeping standards or the Government faces the consequences of failing to transpose the Directive (3). Given the current state of play in Brexit proceedings, it’s unclear if and when the Government will act and if such laws will remain in force. Some reflect that ‘working time regulations are likely to be a major target for reform in the event of a no deal Brexit’ (1). But meanwhile we’re in a legislative chicken and egg situation.

My advice

  • Identify whether you’re a complex employer – do your employees work irregular hours or hold more than one job? (1)
  • Protect yourself and your employees – consider how a time recording solution could meet your needs. If an off the shelf solution doesn’t fit the bill, what internal processes can you implement in the short-term to support? Whether it’s a legal obligation yet or not, lead with best practice and minimise the risk to you and your employees