Recording Work Time
The European Court of Justice (CJEU) has ruled that employers must have a system in place to track the time worked daily by workers, including normal hours and overtime. This decision will ensure that the required daily and weekly rest periods are met and that workers do not go over the maximum legal working hours.
Federacion de Services de Comisiones (CCOO) v Deutsche Bank SAE
In the case of Federacion de Services de Comisiones (CCOO) v Deutsche Bank SAE, the Spanish trade union CCOO argued that Deutsche Bank was obliged to operate a system that recorded the exact amount of time worked by each employee on a daily basis. CCOO contended that such a system would enable the bank to follow their stipulated working hours and to provide information regarding the overtime worked. The measuring system would also arguably promote compliance with the Charter of Fundamental Rights of the EU, and also the Working Time Directive which requires that staff do not work more than 48 hours during a working week.
On the 14th May the CJEU decided that in order to protect the rights of workers, the Charter and Directives require employers to measure both normal and overtime working hours so that both workers and employers can show that rights to maximum hours and rest breaks are being adhered to. It was ruled that member states must determine specific arrangements ensuring that employers implement reliable systems to measure working time and that records of working hours were kept.
The UK’s Working Time Regulations
Adequate records, showing that weekly working time limits and night work limits are being followed, must be kept by employers according to the UK’s Working Time Regulations (WTR). These regulations do not require records showing daily or weekly rest and do not stipulate that all working hours are to be recorded. As the UK remains a member of the EU, the national courts continue to be bound by the rulings of the CJEU and this means that they may interpret the WTR in line with the decision in the event of a challenge. This could mean that the Government may have to amend the WTR to include the requirement that employers keep records of all hours worked by employees.
Employers must tread carefully in light of this judgment, primarily due to the lack of clarity delivered by the ruling and because it is still unclear what constitutes modern working hours. It has been left to the UK courts and Government to decide the specifics of the implementation and they must clarify the parameters of working time and what needs to be recorded. All employers should ensure that the systems they use to measure working time are reliable and accurately reflect all hours that their employees work, looking beyond the hours set out in their employment contracts. Employers must also operate flexible working policies in accordance with Working Time Regulations.
Processes used for recording working time will need to be reviewed by employers who wish to demonstrate that they are not breaching any UK and EU regulatory obligations in regards to the hours their staff are working. An employer can record working time online, through paper records or via a clock-in and out system. The method chosen should be the most appropriate method that is available to the employer and these records must be kept for at least two years in order to fully comply with the decision and EU Working Time Directive.