Working Time to Cause More Work for Employers?

The Court of Justice of the European Union (CJEU) has ruled that, in order to comply with the EU Working Time Directive, employers must keep records of the actual hours worked each day.

In Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, a Spanish trade union (CCOO) brought a claim against Deutsche Bank SAE before the National High Court in Spain.

As part of the wider claim, CCOO asked the CJEU to provide a declaration that Deutsche Bank SAE were obligated to record the hours worked by each worker – including the specific hours worked each day.

The CJEU agreed with CCOO and ruled that, in order to comply with the EU Working Time Directive, the national law of all Member States must “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 Working Time Regulations?

At present, the UK Working Time Regulations require employers to record the average number of hours worked each week (regulation 9). It is not currently necessary for UK employers to record the numbers of hours worked each day.

However, as this judgement demonstrates, the UK Working Time Directive may not be sufficient to satisfy the EU Working Time Directive.

This means that the UK government may need to amend the UK Working Time Regulations so that they also require employers to record actual hours worked per day.

Any amendment will, of course, be subject to the outcome of Brexit. For example, in the event of a “No Deal” Brexit, employment legislation such as the UK Working Time Regulations are a likely area of reform.

What does this mean for UK employers?

Last year, approximately 16,700 claims were issued at the Employment Tribunal under the EU Working Time Directive and/or UK Working Time Regulations. As a result of this CJEU ruling, it is likely that this point will be litigated at Employment Tribunal level in the near future.

Employers should therefore consider taking steps now to mitigate any risk of Employment Tribunal claims under this CJEU ruling, particularly if the workers in your business work irregular hours, work overtime or have more than one job.

In short, employers should keep a watchful eye on how this progresses because:

• The UK Working Time Regulations may be amended in the not-so-distant future (subject to the outcome of Brexit).
• Any amendment to the UK Working Time Regulations will likely require employers to update their internal systems and this could be costly; and
• We may see an increase in Employment Tribunal claims under the working time legislation and using this CJEU judgment.

To speak to a member of our employment department about this, or any other employment related matter, please call 0191 281 6151.