In Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE, the European Court of Justice (CJEU) has ruled that employers must keep records of all hours worked by each worker in order to ensure compliance with the working time limits in the Working Time Directive (the Directive). As the Working Time Regulations 1998 (WTR), which implement the Directive in the UK, do not contain such a requirement, the Government will need to amend the WTR to ensure that this requirement is properly transposed into UK law.

Facts

The CCOO, a Spanish trade union, brought a group action against Deutsche Bank, seeking a declaration that the bank was obliged to set up a system to record the actual numbers of hours worked by staff each day, to ensure that working time limits were being adhered to. The Spanish court asked the CJEU to rule on whether the Directive imposed such an obligation.

CJEU decision

Following the opinion of the Advocate General earlier this year, the CJEU ruled that in the absence of any method of measuring the daily working time of each worker, it was not possible to determine, objectively and reliably, either the number of hours worked and when that work was done, or the numbers of hours of overtime worked. This made it extremely difficult for workers to ensure that their rights had been complied with, and undermined the protection afforded by the Directive. Accordingly, member states should require employers to set up a system enabling working time to be effectively measured.

What to take away

In the UK, although Reg 9 of the WTR requires employers to keep records of whether weekly working time limits and night work limits are being complied with, there is currently no requirement that all hours of work are recorded, or to record daily or weekly rest. It is not clear when any amendments to the WTR will be made; however public sector organisations such as NHS Trusts should be taking steps now to ensure that working time is properly recorded because, as public bodies, they can be sued directly for breach of an EU Directive. Failure to keep accurate records of the hours worked by a worker and/or when those hours are worked, could therefore lead to claims from workers for a breach of the limits on daily and weekly working time.

For further information on how this issue might affect your organisation, please contact Andrew Rowland, Chloe Edwards or Andrew Uttley.