Keeping a record of actual hours worked

Last week's Court of Justice of the European Union (CJEU) decision in Federación de Servicios de Comisiones Obreras v. Deutsche Bank SAE prompted some employers to question whether they should be doing more to record the working time of their workers in the UK.

Last week's Court of Justice of the European Union (CJEU) decision in Federación de Servicios de Comisiones Obreras v. Deutsche Bank SAE prompted some employers to question whether they should be doing more to record the working time of their workers in the UK.  In this blog we look at the implications of the CJEU's decision for UK employers.  We also look at the changes recently introduced in Spain (which originally referred this case to the CJEU). 

In the UK, there is no general obligation to record the actual working time of your workers.  The only obligation on employers under the Working Time Regulations (WTR) - which implemented the EU Working Time Directive in the UK - is to maintain adequate records to show that workers are not working over 48 hours a week and that you are complying with limits on night working.  There is no explicit requirement for employers in the UK to record daily and weekly rest periods.

However, the CJEU in Obreras held that, in order to comply with the requirements in the Working Time Directive on maximum weekly working time and daily and weekly rest, employers in EU Member States must set up an "objective, reliable and accessible system" to record the actual time worked each day by each worker.  It is up to individual Member States to determine the specific arrangements to implement such a system. 

In anticipation of this decision, a law has recently been passed in Spain requiring all companies operating in Spain (regardless of size or sector) to set up a system to:

• record the daily working time of all employees, including tele-workers, sales personnel and on-call employees;
• keep this information for a period of four years; and
• make it available to employees, employee representatives and the Work Inspectorate.

The new law in Spain does not require employers to use a particular type of time recording system.  However, the system that is used will have to provide information about each employee's daily start and finish times and breaks.  For those companies with employee representatives, prior consultation with the representatives will be needed regarding the choice and implementation of the system.  Failure to implement a recording system could result in a fine ranging between €626 and €6,250.  In Spain, the new law has been announced as a measure to control overtime, which is limited to 80 hours per year for full time employees, and it could therefore give rise to an increase in claims and sanctions concerning the payment of overtime and its annual limit.

So, do we need to be concerned in the UK?  Not just yet - the CJEU's decision should not have an immediate impact on employers in the UK.  Last week's decision suggests that the UK is in breach of EU law in failing to implement the Directive correctly.  However, employers in the UK only need to comply with the WTR as they currently stand, and so they do not have to start keeping records of actual time worked until the UK changes the law. 

The answer might be different in the public sector, in which the Directive has direct effect, but it is difficult to see what remedy an employee could claim, even in that case.  The only remedy sought in Obreras was a declaration that the employer should start keeping records.

Please do contact us if you would like more information about the CJEU's decision in Obreras and recent changes in Spain.