At the moment in the UK the Working Time Regulations require employers to keep "adequate records" showing that the limits on average working time, night work and the provisions of health and safety assessments are being complied with in the case of each worker. However, employers are not obliged to keep records in relation to daily or weekly rest, nor is there a requirement to specifically record all hours worked.
In Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE the Spanish National Court referred a question to the ECJ asking if it was necessary for Member States to make it compulsory for employers to introduce systems to measure the actual duration of the working day and working week.
The case arose because the CCOO, a union, sought a declaration from the National High Court that Deutsche Bank were obliged to set up a system for recording the time worked each day by its members of staff in order to make it possible to verify compliance with maximum working hours and to provide the union with details on overtime worked each month. The Spanish National High Court had doubts at to whether Spanish law, which only required time worked to be recorded in specific circumstances (such as for part-time workers and mobile workers working in the merchant navy or rail transport) and not in the case of "normal" working time, was consistent with EU law.
In January 2019, Advocate General Pitruzella provided an opinion concluding that national legislation that does not impose a legal obligation to introduce a system to record daily working time was inconsistent with EU law. The ECJ agreed with him, finding that a law of a Member State that does not require the employer to measure the duration of time worked is liable to render the rights to minimum daily rest, weekly rest and maximum working time meaningless by failing to ensure actual compliance with the rights. The ECJ concluded that the relevant EU legislation "must be interpreted as precluding a law of a Member State that does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured".
This conclusion suggests that the more limited requirement to keep "adequate records" contained in the Working Time Regulations is not consistent with EU law. The long term impact of this decision will depend on the basis upon which the UK leaves the EU (or if it leaves) and the action the UK Government then chooses to take. Although employers will not strictly speaking be in breach of the Working Time Regulations unless or until the Government amend them to take account of this decision, employers should be aware of the possibility of the HSE (who are primarily responsible for enforcement of the record keeping requirement) and Tribunals taking a more purposive interpretation of the Regulations in the future. And food for thought - a system which meets the ECJ's requirement to provide "an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured" would have the added benefit of providing a clear defence to any non-meritorious claims based on daily or weekly rest breaks and/or maximum working hours.
