The European Court of Justice (ECJ) has directed that employers should have “an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured”. This goes beyond the current requirements under the Working Time Regulations (WTR), which do not expressly require employers to keep records of daily rest breaks and rest periods, or to record all daily hours of work. Specifically, existing guidance suggests that dedicated records are not required and other documents, such as payroll records, can be used for this purpose.
However, the ECJ states that, in the absence of any system recording working hours, it would be “excessively” difficult, if not impossible, to ensure compliance with the Working Time Directive (WTD). This decision suggests that the WTR do not adequately implement the WTD.
It is not clear whether the government will amend the WTR to avoid future claims of failure to reflect the intentions of the WTD. This is likely to be dictated by post-Brexit relations. For now, it is recommended that employers introduce and maintain systems to record hours worked. While this might appear overly burdensome, it should assist employers in defending future claims for breaches of working time limits.
Carrying over holiday in sick leave cases
The ECJ has recently confirmed that member states are not obliged to allow the carry-over of annual leave in excess of four weeks from one holiday year to another, even where employees cannot take holiday because of sickness. This decision is consistent with UK case law, but it serves as a positive clarification.
The WTR grants employees 5.6 weeks' leave. This translates to eight additional days' holiday above the four weeks under the WTD. The ECJ's decision clarifies that the conditions governing these additional holidays under the WTR (or any other additional holiday granted by member states) are a matter exclusively for local law.
So, where an employee has been on long-term sick leave and unable to take all their entitled annual leave, their employer can restrict the holidays carried forward provided the four-week minimum granted by the WTD is not undermined. In doing so, the focus should remain on maintaining satisfactory health and safety requirements in the organisation of working time.
Compensatory rest breaks
The Court of Appeal confirmed this year that a compensatory rest break for special case workers under regulation 21 of the WTR (such as security or prison staff, and hospital or railway transport workers) does not need to be identical to the normal 20-minute rest break granted to other workers. Instead, allowing special case workers to take a number of shorter breaks during any working time, which, taken together, amount to an equivalent rest break of 20 minutes (or more) will suffice.
Therefore, employees that fall within the special case worker category can be expected to take breaks during naturally occurring intervals in work (rather than at scheduled times). As long as these breaks last at least 20 minutes in aggregate, there will be no breach of the WTR.
It would still be prudent for employers to ensure that, as per the first case above, adequate records are maintained to record rest breaks taken to make sure certain special case workers receive equivalent rest breaks.
Helena Rozman is an associate, and George Williamson a solicitor apprentice, at Dentons