Employers must record all working time

16th May 2019

Employers must record all working time

If you attended Gotelee’s Employment Law Update at Trinity Park last month you may remember us mentioning the European Court of Justice case of Federacion de Servicios de Comisiones Obreras v Deutsche Bank SAE. The facts of this case are that a trade union brought a group action in Spain against Deutsche Bank, seeking a judgment declaring the bank was under an obligation to record the actual daily working time of its employees.

Earlier this year, the Advocate General stated that in order to comply with duties under the Working Time Directive, national law must require employers to keep records of actual time worked by workers. He commented that even though the Directive does not expressly provide for such an obligation, keeping records of hours worked is instrumental in, and essential to the attainment of the objectives which the directive pursues. Although the Advocate General’s opinion is not binding, it is usually followed by the European Court of Justice. This case is no exception – the European Court has now agreed with the Advocate General.

This judgment means that the Working Time Regulations do not properly implement the Working Time Directive into UK law, and in order to do so would have to be amended to include a requirement on employers to introduce a system for recording the actual number of hours worked by each and every worker on a daily basis. Whilst simple on the face of it, the practicalities of such an obligation are potentially very complex particularly when you consider workers who work remotely, employees whose salaries are not linked to the hours actually worked and workers who hold more than one job. Of course the impact of this decision is somewhat dependent on Brexit and any reforms the Government chooses to make if and when we do leave the EU.

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