European Court rules accurate systems to record hours worked are vital to ensuring employee rights aren’t breached.

Employers must properly measure the length of time staff work, the Court of Justice of the European Union (CJEU) has ruled, in a decision set to place a “greater onus on UK employers”.

The landmark ruling will mean employers have to ensure adequate systems are in place to record the exact number of hours worked, to give workers “proof” – if needed – that their rights are being breached. This in turn will assist authorities and national courts in enforcing those rights.

The decision was handed down in response to Spanish Trade Union-led litigation but, as the UK is still a member of the European Union, could still be used as a precedent in UK courts.

In the UK, under Regulation 9 of the Working Time Regulations 1998, employers already have to keep records to show that workers are not working in excess of 48 hours a week and that rules around night work are complied with, but are not explicitly required to record data to show that daily and weekly rest periods are met. However, this ruling could herald a move in that direction.

Pam Loch, managing director of Loch Associates Group explained: “Currently, UK employers are obliged to keep ‘adequate’ records on working time, and this decision places a greater onus on employers to put in place ‘objective’ and ‘reliable’ record-keeping.” 

Rachel Suff, senior employment relations adviser at the CIPD, said: “The Working Time rules were introduced under health and safety law in the UK, signalling how important it is for people not to work excessively long hours over an extended period of time. 

“The UK has one of the longest average working weeks in the EU and working longer doesn’t always mean you are more productive.”

Suff added that from a wellbeing perspective, employers should discourage a “long-hours culture”, encourage people to use their annual leave and ensure people take regular breaks and rest periods to which they are entitled.

The case was brought by a Spanish Trade Union, the Federación de Servicios de Comisiones Obreras, which wanted a system for recording how long its members worked each day, including the number of hours of overtime, so that it could verify that these complied with their stipulated working conditions.

Under Spanish law, employers only have to keep a record of overtime hours worked by each worker at the end of each month. The court was given evidence that these records were not accurate and that 54 per cent of all overtime worked was not recorded.

The National High Court of Spain, which first heard the case, said failing to introduce adequate measures “deprives workers of an item of evidence essential for demonstrating that they have worked in excess of maximum working time limits, and second, deprives their representatives of the necessary means for verifying whether the applicable rules on the matter were complied with.”

Joseph Nicholls, head of employment at Hodge Jones & Allen Solicitors, said the decision to facilitate employees’ enforcement of their employment rights was a positive step for workers and businesses alike. 

“This will empower employers to put in place effective measures to ensure certainty through compliance,” he said, “particularly for those businesses who want to demonstrate their efforts to achieve the right work-life balance for their employees.”  

Loch added that while Brexit does not affect the enforceability of existing employment rights derived from European law, “it will be interesting to see if the UK government changes the law if we do leave the EU”.

How should employers respond?

The Health and Safety Executive (HSE) enforces the requirements in the WTR on working time and keeping related records, with non-compliance being a criminal offence. The WTR does not give individual workers the right to enforce these requirements, although an individual can bring a complaint to an employment tribunal with regard to a failure by their employer to allow them to take appropriate rest breaks. 

In light of this, it is anticipated UK employers will wait for updated guidance from the HSE before taking steps to revise existing, or introduce new, record keeping systems. While the UK government should amend the WTR to make them compatible with the WTD, it submitted an observation to the ECJ regarding the potential costs to employers of setting up compliant record systems. It therefore seems likely the UK government will take no immediate steps to amend the WTR in light of the prospect of Brexit.

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