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Employers must keep records of all hours worked

28th February 2019

The title of this article may seem obvious. However, the case in question has a more precise impact for employers and also raises questions about the effect of such cases, coming from the European Courts in the future.

The case of Federacion de Servicios Comisiones Obreras v Deutsche Bank SAE is a case originating in the Spanish courts.

The Advocate General, who gives preliminary rulings in cases taken to the European Court of Justice has ruled that under the relevant EU Working Time Directive employers are obliged to set up a system for recording actual daily working time for full-time workers who have not collectively or individually agreed to work overtime.

In this case the staff unions brought a claim seeking a declaration that the bank was obliged to set up a system to record the actual number of hours worked each day by its employees, and therefore ensure make it possible for them to check that the relevant rules on working hours are being met. The unions argued that these rights derived from the EU Directives. The bank argued that these obligations did not strictly arise under Spanish law, and that the Spanish law only required the employer to record the overtime. The unions wanted a declaration of whether or not the Spanish law complied with the obligations imposed by the EU Directives, including whether the Spanish law adequately covered the obligations to ensure the effectiveness of the weekly working time limits, and weekly and daily rest breaks. 

In giving the opinion, the Advocate General noted that in the absence of a system for measuring the actual number of hours worked, it was not possible to guarantee that the working time limits set in the EU Directive had actually been met, and that workers would be unable to protect and enforce their rights. The Advocate General observed that workers are otherwise dependent on the employer’s discretion. Therefore, the Advocate General concluded that the obligation to actually measure the number of hours worked is an essential part of making sure that the employer has adhered to the requirements of the EU Directive, ie demonstrating compliance with the rules on weekly and daily rest breaks and on the duration of the working day, and the effect of overtime. Accordingly, the Advocate General recommended that the European Court of Justice (ECJ) should rule that the EU Directive obliges employers to set up and implement systems to record the actual number of hours worked each day for full-time workers that have not expressly agreed (either collectively or individually) to work overtime. As expected, the Advocate General did indicate that it remained up to each member state to decide on the method of recording hours worked.

You may wonder what impact this has in the UK. Under the Working Time Regulations 1998 employers are required to keep “adequate records” to demonstrate compliance with the working time and rest break rules relating to weekly working hours and night work limits. It is notable that the UK’s Working Time Regulations 1998 do not directly require employers to record all hours worked or cover weekly or daily rest break records. In addition, the Health and Safety Executive guidance indicates that employers are not required to keep specific records, but the employer may rely on other existing records- such as pay records, in order to meet their obligations.

The impact is that if the ECJ follows the Advocate General’s recommendation, then it will be questionable as to whether the UK’s own regulations meet the legal requirements.

This case also raises questions for employers on how far they will have an impact in light of Brexit, and the continuing uncertainty of the terms of the departure of the UK from the European Union. Therefore, this issue may need close attention, and reviewing in light of political developments as well as legal developments.

On a practical level it is always best to make sure that employers keep full and accurate records of actual hours worked by all their workers, and equally that details of rest breaks are fully recorded.

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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