Charlotte Davies

+44 (0)1223 785267 cdavies@greenwoodsgrm.co.uk

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Keith Williams

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Employers must record daily working time

Employment / 16 May 2019

The ECJ has held that employers must have a system in place for measuring actual daily working time for individual workers.

Issue

In a Spanish case, a trade union argued that Deutsche Bank was obliged to have a system in place to record the actual hours worked each day by its members so that it could check that the working time provisions in Spain were being properly complied with.  The Spanish court asked the ECJ to determine whether employers were required to do this.

Key dates

The ECJ’s judgment was published on 14 May 2019.

Impact

The ECJ held that:

  1. All workers have a fundamental right to a limit on their maximum working hours and to daily and weekly rest breaks;
  2. The only way to guarantee these rights is to record the number of hours worked, when that work was done, and the number of hours overtime worked; and
  3. Member States must require employers to set up an “objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured”.

Action

In the UK, regulation 9 of the Working Time Regulations 1998 (“WTR”) requires employers to keep “adequate records” to show whether the weekly working limit of 48 hours per week and the limits on night working are being complied with, and to keep these records for two years.  Regulation 9 does not deal with daily or weekly rest breaks and does not specifically require all hours of work to be recorded.

Following the ECJ’s judgment, it is therefore highly likely that the WTR do not comply with EU law.

Employers should now ensure that they have objective and reliable systems in place for accurately recording all working time for all workers.

The ECJ said that employers cannot avoid this requirement because the changes involved might be expensive.

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