In the UK, however, with Brexit on the horizon, the timing of this judgment inevitably raises questions about how, or if, the UK will deal with its impact. A no-deal exit from the EU may well lead to this judgment having limited impact in practice going forward. Also, notwithstanding many previous European developments in relation to working time, notably holiday and holiday pay, express revisions have still not been made to the Working Time Regulations 1998 (WTR). Only time will tell therefore whether this latest development will spur legislative changes on, or not!
The key issues at stake in this case involved the interpretation of both the Working Time Directive and the Charter of Fundamental Rights of the European Union ('Charter'). CCOO brought proceedings to seek a declaration that Deutsche Bank was required to operate a system to record the daily time worked by its employees.
The ECJ noted that the right of every worker to a limitation of maximum working hours and to daily and weekly rest breaks is both a rule of particular importance and is also expressly enshrined in the Charter. The rights are to:
- A minimum daily rest period of 11 consecutive hours per 24 hour period and, in a 7 day period, to a minimum uninterrupted rest period of 24 hours plus the 11 hours' daily rest; and
- A maximum 48 hour average working week, which includes overtime.
The ECJ said that Member States are required to ensure that the minimum rest periods are observed and that the maximum working week is not exceeded, but also noted that they are free to choose the necessary measures to implement this. In this respect, however, the ECJ said that the measures taken must not render the rights meaningless and that employers must be prevented from being in a position to impose restrictions on workers' rights (workers expressly being identified, several times, by the ECJ as the weaker party).
In light of these considerations, the ECJ held that without a system enabling the duration of daily time worked to be measured, it is not possible to determine objectively and reliably either the number of hours worked by the worker, and when that work was done, or the number of hours worked as overtime. This means that it is "excessively difficult, if not impossible in practice" for workers to ensure compliance with their rights.
The ECJ therefore said that 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.'
So what is the impact for employers with workers across the EU? It is important to note that the judgment does not place a positive obligation on employers to keep working time records; rather, it requires Member States to provide for a record-keeping obligation in domestic implementing legislation. In order to comply with the judgment, therefore, many Member States may have to make changes to existing legislation, or introduce new provisions. Notably, in Spain, where this case originated, the Spanish Government has already brought into force a new law (effective 12 May 2019) to require employers to record daily working hours with financial penalties for non-compliance.
In the UK, however, there has been a notable failure to make changes to the WTR, despite many EU legal developments in recent years. As things stand, there is a requirement under Regulation 9 to keep such records as are "adequate" to show whether the limits on maximum weekly working time are being complied with (unless an employee has opted out of the 48 hour working week). Health and Safety Executive Guidance states that there is no need to keep specific records and that records kept for other purposes, for example in relation to pay, can meet the relevant obligations. However, importantly the Regulation 9 provisions do not require all hours of work to be recorded and nor do they cover rest periods; for this reason, they are probably insufficient to meet the requirements of the ECJ's judgment, and therefore the UK is, on the face of it, required to now introduce new laws to require employers to set up a full recording system of workers' hours and breaks, regardless of opt-outs.
Even without express legislative changes, whilst the UK remains in the EU (and if there is an exit on the terms of the November 2018 Withdrawal Agreement) UK courts will still need to factor in the judgment in relation to any relevant complaints. Employers should therefore now assess to what extent their existing processes can be modified to enable compliance and/or whether new systems need to be acquired to enable recording to be done accurately. This may not be straight forward, particularly, for example, for employers with remote or casual workers.
In seeking a commercial and practical strategy to the impact of this case, it is perhaps worth noting that the real extent of the risk to employers might relate to the prospect of any complaints being brought. Individuals can currently bring complaints to the employment tribunal in relation to any failures by their employer in relation to rest breaks, and perhaps the publicity of this case will make workers more aware of their rights and lead to an increase in claims, which in turn will lead to scrutiny of employer records. At present, however, only the Health and Safety Executive can bring proceedings relating to a failure to keep working week records. If it also becomes the enforcer of daily working and rest break records, only time will tell whether it has the resource or appetite to pursue enforcement. Brexit is also an unknown quantity at the moment and it is impossible, at this stage, to predict how that will play out. Employers who wish to keep their house in order, however, may be wise to consider taking steps towards compliance as soon as possible.