A recent ECJ decision has raised serious concerns as to whether the UK’s record keeping rules comply with the Working Time Directive. The ECJ confirmed that all employers in EU member states should be required to establish an objective, reliable and accessible system for measuring their employees' daily working times.
The case concerned the Spanish trade union CCOO requesting the Spanish courts to rule on whether the local branch of the German owned Deutsche Bank had to establish a system to record employees' working hours. Their system only had measures in place to record overtime. The Spanish courts requested a ruling from the European Court of Justice, which found that a failure to have a recording system in place would mean employees’ would not be able to enforce their rights in relation to the limit on average weekly working hours, and to daily and weekly rest periods.
In the UK, the Working Time Regulations 1998 oblige employers to keep “adequate records” to demonstrate compliance with the 48-hour limit on the average week. However, there is no specific requirement to record all daily hours of work, nor daily or weekly rest periods.
The decision was not clear on what counted as working time i.e. did it include a quick email from a mobile handheld device in the evening? The flexibility of present day working practices could make accurate time recording difficult to implement.
ECJ decisions are binding and it will take some time for this to be incorporated into UK law. However, employers should be preparing to put recording measures in place to accurately reflect hours worked by staff.
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Author: Rafia Ahmad
Senior Solicitor, ESP Law Ltd
Rafia trained and qualified with Wedlake Bell LLP, a London City law firm where she was an employment solicitor for six years before moving to the fast paced trading floor of Cantor Fitzgerald LLP, a London based New York prime brokerage/investment bank as in-house employment counsel. Prior to joining ESP, Rafia was a senior employment solicitor for five years with Backhouse Jones, the UK’s number one national road transport law firm. She advises on all employment matters both contentious and non-contentious including tribunal proceedings.