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Working time: must employers keep records of hours worked?

Details

The Spanish Advocate General has recently given a persuasive yet non-binding opinion in the matter of Federacion de Servicios de Comisiones Obreras -v- Deutsche Bank SAE concerning the recording of hours worked.

Under the EU working time directive, employers are required to set up a system for recording actual daily working time for workers who have not expressly agreed to opt out of the maximum 48 hours of work per 7 days. 

In Britain, Regulation 9 of the working time regulations requires employers to keep ‘adequate records’ showing compliance with maximum weekly hours worked, length of night shifts and health assessments for those transferring from night to day work; it does not specifically require the recording of rest hours or otherwise for all hours of work to be recorded. 

Factual background

In this group action brought against the bank by a number of trade unions, a declaration was sought that the bank should be obliged to record all hours worked each day. The bank’s interpretation was that the law only requires overtime hours to be recorded and claimed full compliance in that regard; otherwise the records used by the bank only recorded absences such as annual leave, sickness etc. 

The National High Court of Spain therefore referred the question to the ECJ asking whether it is compulsory for employers to introduce systems to measure the actual duration of the working day and working week.  

Advocate General opinion

The Advocate General considers that there is such an obligation, that that obligation is not restricted to overtime hours and that ‘any practice or omission by an employer that may deter a worker from exercising rights as to working hours must be regarded as incompatible with the Directive.’ 

If the ECJ follows the AG’s opinion (which it does regularly) there will be an obligation at a European level  to introduce a system for recording actual number of hours worked each day. In turn, Great Britain employers would be required to ensure they too comply with this interpretation and follow suit. This could have a specific effect on bank workers and those working irregular hours or where the worker holds more than one job. 

The impact is somewhat dependent on Brexit; the topic of working time regulations is likely to be a major target for reform in the event of a no deal Brexit and we shall update on this again once the position is better understood.

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