Employers Must Record Working Time

by Rachael Brenchley, Boyes Turner LLP

With unerring timing the Court of Justice of the European Union (CJEU) has linked mental health, working time and Brexit all into one judgment during Mental Health Awareness Month.

The EU introduced the Working Time Regulations as a health and safety measure and has jealously protected their status, most notably in the UK around the issue of the right to paid holiday. Encouraging employees to take paid holiday is a good thing and contributes to mental well-being.

One of the measures introduced by the Regulations was the 48-hour working week. The UK exercised its right to opt out of that. Studies have shown that long working hours can increase the prospect of employees suffering poor mental health, and research has found a link between working overtime and the risk of subsequent major depressive episodes.

Working time, as a whole, is therefore seen as a key area which must be protected and monitored for the health, safety and welfare of employees.

The Facts of the Case

The CJEU was asked to consider an important issue referred by the Spanish Courts. A trade union in Spain brought proceedings on behalf of its members against Deutsche Bank because it did not have a system in place to monitor how many hours its employees were working. The union sought a declaration that Deutsche Bank was in breach of its obligations to monitor and record this information.

Earlier this year, Attorney General Pitruzella delivered an opinion stating:

“The absence of a mechanism for recording working time will significantly reduce the effectiveness of the rights which [the Working Time Directive] confers on workers, who will essentially be dependent on their employer’s discretion…”

He noted that while there was no express obligation to do this in the Directive, it was “essential to the attainment of the objectives which the directive pursues…”

The CJEU followed the Attorney General’s ruling and concluded:

“.. in order to ensure the effectiveness of those rights provided for in [the Working Time Directive] and of the fundamental right enshrined in Article 31(2) of the Charter, the 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.”

The Decision

The CJEU’s decision is clear. It requires Member States that do not currently comply to amend their legislation to require employers to provide a mechanism to measure daily working time. This will require the UK to amend the Working Time Regulations or to decide to derogate from that particular provision.

The UK is leaving the EU—maybe. The Government has said that employment rights deriving from the EU will be enshrined in law. Employees now have the right to have their working time monitored daily, if the UK is to comply with the Working Time Directive.

At a time when mental health is at the forefront of social and political consciousness, not taking steps to monitor working time and protect employees’ mental health is likely to play badly with the unions and lead to suggestions that the government has not kept its promise about workers’ rights.

The Impact

Currently, under the Working Time Regulations in the UK, employers must keep adequate records showing compliance with weekly working time limits and night work limits. However, this judgment clearly shows that these records do not go far enough to ensure protection of fundamental health and safety rights. Therefore, UK legislation must be updated to align with EU law.

It was acknowledged that implementing such a system could have substantial financial implications for employers. However, the protection of workers’ health and safety is considered more important than financial considerations.

Individual Member States will determine the specific arrangements for implementing the system. We must wait to see how the UK responds—whether it amends the law or seeks to derogate from it.

Practice Point

This judgment emphasises the importance placed by the CJEU on working time and mental health issues, particularly regarding “long hours cultures”. Employers face foreseeable challenges in complying with such an obligation; however, employee well-being is paramount.