How a recent ECJ decision could affect region's businesses

What the European Court of Justice ruling on keeping records of all hours worked means for the region’s businesses

Posted by Lindsey Knowles

Partner, Head of Employment Law at Kirwans Solicitors

Thu 23rd, May

A new ruling obliging all employers - regardless of size - across Europe to ensure that adequate systems are in place to record the exact number of hours worked by employees has been handed down by the European Court of Justice (ECJ).

The measure is an attempt to enable wronged workers to prove, should they need to, that their rights are being breached and would assist the relevant authorities and national courts to enforce those rights. But with question marks hanging over Brexit, how will such a move affect the region’s businesses?

“There has been a lot of noise around the ruling,” said Lindsey Knowles, Head of Employment Law at Kirwans law firm, “but essentially the decision simply requires employers who, under the EU Working Time Directive should be recording employees’ working hours anyway, to document a greater and more objective level of detail than they have done previously.”

The ruling came about during the case Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, which was heard by Spain’s high court, the Audiencia Nacional.

Here, Spanish trade union CCOO brought legal action against financial organisation Deutsche Bank SAE. It argued that the businesses should be obliged to have a system in place that records the time worked each day by employees, so that compliance with stipulated working times can be verified. Evidence was produced that over half of overtime hours worked in Spain are not actually recorded.

“The EU Working Time Directive already sets out that workers over 18 can’t work more than 48 hours a week on average unless the worker has opted out in writing, and that employers must keep and maintain records that are ‘adequate’ to demonstrate compliance with that” Lindsey explains.

“However, the ECJ decision appears to impose an even greater obligation, and although employers in the UK are not currently required to record daily and weekly rest breaks and rest periods, the ruling could lead to that being the case in the future,

“The new measure will help employers by reminding them of the importance of keeping detailed data with regards to employee hours worked and breaks and holidays taken, and will also give them the chance to demonstrate the efforts they’re taking to ensure a healthy work/life balance for employees by complying with both EU and UK law.

Lindsey explained that the legislation is likely to stand whether or not the UK eventually leaves the EU.

“Employers have quite rightly been concerned about how they’ll be affected by the changes post-Brexit, and although EU member states have to determine specific arrangements for the implementation of such systems themselves, the current government has signalled its intention to restate all EU employment rights into UK law following our potential departure from the EU,” she said.

Refuting the suggestion that the ruling could mean the return to a punch clock, Lindsey said: “The requirement to record workers’ start, finish and break times does not necessarily mean the return to a punch clock. There can still be flexibility, as smart phones and apps can document working hours, and the ECJ did not specifically state that, for example, an email sent from home has to be recorded as work. We in the UK can decide the specifics – whether we remain in the EU or not.”

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