The European Court of Justice (ECJ) has recently decided that the Working Time Directive (WTD) imposes an obligation on employers in all EU member states to record all working time, not just excess hours or overtime. This marks a significant departure from standard practice and may mean that employers will, in future, be required to implement systems that record workers’ time.
In Confederación Sindical de Comisiones Obreras, the ECJ considered the provisions concerning rest periods and the weekly working hours limit under the WTD. In this case, a number of trade unions brought a group action against the employer, seeking to obtain a declaration that the employer was under an obligation to set up a system recording the actual amount of time worked each day. This system should, the claimants argued, make it possible to check that the working times laid down in legislation and collective agreements were properly adhered to. The employer did not have such a system in place, but it did operate a computer application that enabled whole-day absences to be recorded without measuring the duration of time worked by each worker or the number of overtime hours worked.
Article 3 WTD provides for a minimum period of daily rest (11 hours in any 24-hour period) while Article 5 provides for a minimum period of weekly rest (24 hours per period of seven days). The WTD also contains an upper limit of 48 hours for the average working time for each seven-day period, although UK employees can opt-out of this limit by written agreement.
The ECJ was asked to consider whether national Spanish law (which did not require every hour to be recorded) was sufficient to ensure the effectiveness of the working time limits laid out in the WTD, and if not, whether employers should be required to establish systems whereby the actual daily working time worked by full time employees is recorded.
The ECJ ruled that member states and employers are obliged to introduce “an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured”. This was, the Court held, to ensure the effectiveness of the rights provided in both the WTD and the EU Charter of Fundamental Rights.
While employers would have some discretion as to how the system is set up, the ECJ stated that the system would need to provide access to objective and reliable data, allowing workers, as well as national courts, to check whether working time limits set down in national legislation and collective agreements were being adhered to. In the absence of such a system, member states could not ensure compliance with working time limits set out in the WTD or the Charter.
Implications for UK employers
The WTD takes effect in UK law through the Working Time Regulations 1998 (WTR). Under regulation 9 WTR, employers are currently under an obligation to keep and maintain records that adequately show that working time (including overtime) for all workers who have not opted-out does not exceed 48 hours per week and that the limits on night work have been complied with. Compliance is measured over a reference period of 17 weeks and records must be kept for two years. At present there is no obligation to keep records in relation to rest breaks and rest periods.
The ECJ’s decision in Confederación Sindical suggests that the WTR fails to implement the WTD. The UK Government may therefore decide to amend the WTR to eliminate any risk of a claim in respect of a failure to sufficiently implement the WTD. However, due to Brexit, there is considerable uncertainty as to whether this amendment to the WTR will be made.
Notwithstanding the uncertainty surrounding the potential amendment of the WTR, employers may still wish to consider proactively changing their systems in line with the ECJ’s decision. This would best place employers to defend future claims should the UK requirements change suddenly.
*Research and drafting assistance for this post was provided by Reed Smith Trainee Solicitor Anna Greenfield.