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Does an employer have to keep a record of the hours that an employee works?

Working Time and Hours

The answer is, yes, according to a case that went before the European Court of Justice.   Due to the direct effect of EU law, the ruling will have implications for UK employers and may require the amendment of the Working Time Regulations 1998, depending on how long we remain in the Europe Union for.

The Law

The Working Time Directive was implemented into UK law through the Working Time Regulations 1998 (WTR’s).   Principally aimed at safeguarding the health and safety of workers in the workplace, the Regulations provide a myriad of rights to workers such as the right to paid annual leave, the right to daily and weekly rest breaks to name a few.   The Working Time Regs also impose a maximum on a workers weekly working hours of 48 hours.

The Facts

The case that was decided by the European Court of Justice was brought by a Spanish trade union against Deutsche Bank.  The union wanted a declaration that the bank was under an obligation under the Working time Directive to record the actual daily working time of its employees.  The union wanted the bank to set up a system for recording the time worked every day by its members of staff.   This was to make sure that workers were not working more than the legal maximum and that the bank was complying with its obligation to tell the union how much overtime was being worked each month.   The bank argued that under Spanish law, there was not requirement to set up such a system because under Spanish law employers only had to keep a record of overtime worked by each worker.  However, according to the union, the bank’s records were inaccurate, and a significant proportion of overtime was not accounted for at the end of every month.

The Court declared that the Directive required employers to set up an “objective, reliable and accessible system” enabling them to record the number of hours worked each day by each worker, and said that if an employer did not have such a system, there would be no way of ensuring that the employer was complying with the right to a limitation on maximum weekly working time and minimum rest breaks conferred by the directive.  To not require an employer to have a system in place to measure hours worked would, in the Court’s opinion, render the rights enshrined by the directive meaningless.

Points to Note

The Working Time Regs require employers to keep “adequate” records of the number of average hours worked by workers every week to demonstrate compliance with the 48-hour week and limits on night working. They do not, however, require employers to keep daily accurate records of the hours worked by every worker. On the basis of this European decision, therefore, the Working Time Regs do not appear to be in line with EU law and may need to be amended – depending on the UK’s future relationship with the European Court of Justice.

So, what does this decision now mean for employers?

As EU law has a direct effect on UK law, the decision is binding on the UK and our courts remain bound to interpret our laws in accordance with EU law.  This means that employers will need to implement a system for accurately recording, on a daily basis, the hours worked by each worker (whether these are paid or unpaid) to make sure their workers are not exceeding the 48-hour cap on the working week but also are taking adequate rest breaks.  Employers who do not take such steps risk potential legal claims being brought by workers for breach of their rights.

Action to take

In reality, many employers will already record the daily working time of their workers but those who don’t will now be required to implement a time recording system, according to this ruling.  Although it is possible for employees to opt out of the 48 hour maximum working week (thereby removing the requirement to keep adequate records of hours worked for this purpose), the opt out does not extend to rights to daily and weekly rest breaks which now have to be accounted for.  Whilst there will be many technical solutions available to comply with this requirement, it nonetheless will come at a significant cost to many employers.  Given the current political situation, the best approach may be for employers to wait until the future relationship between the UK and Europe is clearer before taking action to address the European Court of Justice’s ruling.

Case Reference

Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (C-55/18) EU:C:2019:402 (14 May 2019).

This article was written and researched by Miranda Amos, Solicitor at our Salisbury Office.  Miranda advises clients across Hampshire, Wiltshire and Nationwide.

 Miranda is the firms expert on maternity, pregnancy and parental rights. If you have any questions or concerns about the proposed changes or any issues in your business please do get in touch with Miranda directly!

Don’t forget getting advice from a Solicitor does not have to be complicated or costly!

Photo by Brad Neathery on Unsplash

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.

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