A matter of time
Should employers record actual working time?
The Attorney General of the European Court of Justice (ECJ) recently provided a legal opinion on whether employers must keep records of hours worked.
The EU’s Working Time Directive provides that workers must work no more than 48 hours per week (subject to exceptions) and are entitled to specified daily and weekly rest breaks, unless the worker has opted-out.
In a recent case, a Spanish trade union brought a collective claim against Deutsche Bank SAE on the grounds that its workers were unable to benefit from the Spanish working time limits because the bank did not keep a record of the actual number of hours worked each day. The bank argued that it was only obliged to record overtime, and that it could sufficiently record working time by keeping records of absence. The Spanish Tribunal agreed with the bank and found that there was no general obligation under Spanish law to record actual working time.
The trade union appealed to the Spanish National High Court which sought guidance from the ECJ. In advance of the ECJ’s deliberation, the Advocate General has issued a non-binding legal opinion.
The Advocate General’s opinion is that EU member states must require employers to record actual working time for all workers who have not opted out of the working time limits in order to implement the EU’s Working Time Directive. In the absence of an effective system that records working time, it is extremely difficult for workers to seek remedies to protect their health and safety when the working time limits are unlawfully exceeded. The ECJ will deliberate and issue a judgment in due course.
This opinion is significant for UK employers because there is a risk that the UK’s national law, which requires employers to keep “adequate” records to show whether the working time limits have been complied with, does not go far enough to fully implement the EU’s Working Time Directive because it does not require employers to record the hours worked each day.
At the time of writing, the status of ECJ judgments post-Brexit is unclear, but employers should bear in mind that they may be subject to more comprehensive obligations to record actual working time and rest breaks in the future.