Keep it on the record

In a Spanish case called, Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE, the National High Court of Spain referred the following question to the Court of Justice of the European Union (CJEU):

“Is it necessary for the Member States, in order to ensure that the health and safety of workers in the workplace is fully and effectively protected… to make it compulsory for employers to introduce systems to measure the actual duration of the working day and working week?”

The case concerns a group action brought by Spanish trade unions against Deutsche Bank (DB), seeking a declaration that DB is required to implement a system to record the amount of time worked each day by its full-time employees. The CJEU’s role in providing a declaration is to give an interpretation of European Union law or to rule on its validity, not to apply that law to the factual situation underlying the main proceedings, which is the task of the national court. The opinion of the Advocate General was sought by the CJEU. The Advocate General determined that the Working Time Directive (the Directive) requires employers to set up a system for recording the actual number of hours worked each day for workers who have not expressly agreed to work overtime. Without a system for measuring the number of hours worked, there can be no guarantee that all the limits laid down by the Directive (in relation to maximum weekly working time, rest breaks, daily and weekly rest periods etc.) will actually be observed or that workers will be able to exercise their rights. Member states would be free to determine the required method of recording working hours.

What are employers currently required to do in the UK?

The UK gives effect to the Directive through the Working Time Regulations 1998 (the UK Regulations). Employers are under an obligation to keep and maintain records that are ‘adequate’ to show that:

• working time (including overtime) for all workers who have not opted-out does not exceed 48 hours per week on average; and
• the limits on night work have been complied with.

Records must be kept for two years from the date on which they were made. There is no requirement to keep records in relation to rest breaks and rest periods.

The UK Regulations do not specify what format records have to take. Guidance published by the Health and Safety Executive states that employers do not necessarily have to create records specifically for the purposes of showing compliance with the UK Regulations and therefore, it is possible to use existing records maintained for other purposes such as pay.

There is also an obligation to keep up-to-date records of all workers who have signed agreements opting-out of the 48-hour maximum working week. This could be a list of the relevant workers’ names together with copies of the signed opt-out agreements. There is, however, no need to keep records of the hours actually worked by these workers.

CJEU’s decision

The CJEU ruled that the relevant articles of the Directive “must be interpreted as precluding a law of a Member State that, according to the interpretation given to it in national case-law, does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured”.

What does this mean for the UK?

The CJEU’s decision suggests that the UK Regulations in their current form do to not satisfactorily implement the Directive into UK domestic law because there is currently only a requirement to have in place systems for recording the average working time, rather than the actual number of hours worked. At present the UK remains subject to the jurisdiction of the CJEU. UK courts, other than the Supreme Court, will continue to be bound by EU laws and will need to take account of CJEU decisions made before Brexit. There is therefore a possibility that this point may be litigated in the Employment Tribunals (Tribunal), notwithstanding the uncertainty of Brexit.

Post Brexit, UK courts and Tribunals may have regard to anything done on or after Brexit, so far as it is relevant to the matter before the court or Tribunal, however there will be no obligation for a court or Tribunal to do so. It is possible that the UK may start to move away from decisions of the CJEU (and the EU itself) once the UK is no longer bound by EU law and/or current legislation interpreting EU law may be superseded by post Brexit legislation.

If you have any questions, please contact Elliot Francis, or any member of the Employment team.

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