Legal Update: European Court rules on Working Time Directive

This month, the Court of Justice of European Union (“the CJEU”) has ruled in a Spanish Working Time case about what records organisations must keep of working hours.

In this case (Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE), the CJEU decided that employers must keep records of the actual daily time worked by workers to comply with the EU Working Time Directive. The Court stated that these records were necessary to properly monitor if the following requirements in the Directive were being complied with:

  • the weekly working limit – which is set at a maximum of 48 hours per week on average, unless the worker has ‘opted-out’ of this limit;
  • the minimum daily rest period – which is at least 11 hours rest in every 24 hours period; and
  • the weekly rest period – which is at least an uninterrupted 24 hours rest in each seven-day period.

The Working Time Regulations 1998 and their Northern Ireland equivalent (“the WTR”) don’t explicitly require employers to keep records to show that daily and weekly rest periods have been met.  Instead, organisations must just keep ‘adequate’ records to show the weekly number of hours worked and that the rules around night work are being complied with.  This applies even if the worker has ‘opted-out’ of the 48-hour working limit.

Therefore, if EU law remains relevant in the UK, the Government would need to amend the WTR to properly reflect the EU Directive.

Of course, the UK’s relationship with the EU is currently in complete uncertainty and it may be that in the future, employees can’t rely on this CJEU ruling.

However, the Withdrawal Agreement as currently drafted does state that the UK will continue to be bound by CJEU caselaw unless it has been specifically overturned.  Therefore, on this basis, this case would still be relevant even once/if Brexit goes ahead.

It is important that organisations now keep full records of all worker’s working time (whether official hours/overtime or extra work) in line with this CJEU judgment.  This means records both:

  • The amount of time worked; and
  • when it was worked by the employee

Organisations should review their current systems and procedures to assess what is the simplest way of recording working time.  In some situations, this could be difficult, for example it would be hard to keep track of when a manager is logging on in the evening to send some emails and complete some work.

Without further guidance on this however, it is sensible to approach it with a common-sense view and keep communicating with employees to monitor and record what work they are doing and when.


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