Article by Herbert Smith Freehills LLP
The ECJ has followed the Opinion of EU Advocate General Pitruzzella in ruling that, under the EU Charter of Fundamental Rights and the EU Working Time Directive, member states must require employers to set up an “objective, reliable and accessible” system for recording the actual number and distribution of hours worked by individual workers each day in order to ensure compliance with Directive obligations, such as maximum working day and week, and daily and weekly rest periods.
Although there is no express obligation in the Directive to record actual hours worked, the Court agreed that such an obligation is essential to ensure workers enjoy the rights conferred on them by the Directive. The Court underlined that the cost of recording time cannot justify a failure to comply with what is a health and safety requirement. (Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, C-55/18)
UK regulations only require ‘adequate records’ to show whether the weekly working time limits (save for those who have opted out) and night work limits are being complied with. The ECJ decision means that the UK Regulations do not properly implement the Directive in relation to rest entitlements. The UK government should therefore amend the UK regulations to reflect this ruling, though this may be affected by Brexit and is unlikely to be imminent. Although the case only concerned the maximum working week and daily and weekly rest periods, it is likely that the ECJ would apply the same reasoning to require effective recording in relation to the right to a 20 minute rest break after working six hours.
In the UK claims for failure to keep records can only be brought by government enforcement agencies including the Health and Safety Executive, and it seems unlikely that these would begin proceedings without first warning employers that they intend to apply this new interpretation of the requirements to all employers (on the basis that the courts can interpret the Regulations consistently with the ECJ ruling). Private sector employers may therefore choose not to adopt new time-recording measures immediately, but would be well advised to start considering what methods would be feasible in their business and should keep an eye out for any HSE updates. Employers will also need to remember to ensure that processing of individuals’ working hour data is in compliance with GDPR principles.
It is also worth bearing in mind that, if workers bring claims for breach of required rest breaks, tribunals may now be more inclined to give the benefit of the doubt over what hours have been worked to the worker if an employer has failed to implement a reliable and objective recording system.