The European Court of Justice (ECJ) ruling in Confederación Sindical de Comisiones Obreras (CCOO) v Deutsche Bank SAE follows on from an earlier ECJ case law which highlighted that the calculation of holiday pay, in respect of the four weeks’ holiday stipulated by the Working Time Directive (WTD) under the WTR, was incompatible with the WTD.
In this latest case, the ECJ referred to the fundamental right of every worker to a limit on maximum working hours, and to daily and weekly rest periods as enshrined in Article 31(2) of the EU Charter of Fundamental Rights. The charter is given effect by the WTD and the WTR, which set down the legal requirements with regard to limits on working time, including the maximum hours a worker can be required to work in a week, daily and weekly rest breaks, and night working.
Regulation 9 of the WTR requires a UK employer to keep “records which are adequate” to show whether weekly working time limits and the time limits on night working are being complied with. UK employers also do not need to keep specific records for this purpose but can rely on records kept for other purposes, such as payroll.
The decision by the ECJ related to a claim brought by a Spanish workers union to require a bank to set up a system to record the actual number of hours worked each day by its staff, making it possible to check that the working time limits laid down in national legislation and collective agreements were being properly adhered to. The Spanish court asked the ECJ to determine whether the charter and the WTD required this – and the ECJ decided that it did.
While the employer would have some discretion as to how the system is set up, the ECJ stated that it should measure the time worked by workers each day and provide access to objective and reliable data. This would then allow workers, as well as competent authorities and national courts, to check whether working time limits set down in national legislation and collective agreements were properly being obeyed or had been infringed. The ECJ concluded that 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.
By coming to this conclusion, the ECJ has also highlighted that the WTR requirement on UK employers is deficient compared to the WTD. The WTR does not require records to include details of all hours worked, nor does it state that records must be kept specifically for this purpose.
How should UK employers respond?
The Health and Safety Executive (HSE) enforces the requirements in the WTR on working time and keeping related records, with non-compliance being a criminal offence. The WTR does not give individual workers the right to enforce these requirements, although an individual can bring a complaint to an employment tribunal with regard to a failure by their employer to allow them to take appropriate rest breaks.
In light of this, it is anticipated UK employers will wait for updated guidance from the HSE before taking steps to revise existing, or introduce new, record keeping systems. While the UK government should amend the WTR to make them compatible with the WTD, it submitted an observation to the ECJ regarding the potential costs to employers of setting up compliant record systems. It therefore seems likely the UK government will take no immediate steps to amend the WTR in light of the prospect of Brexit.
Sarah Ozanne is an employment lawyer at CMS