We are all no doubt familiar with the requirements of the Working Time Regulations 1998. After all, they have been in force now for over 20 years. Just as a reminder, the (quite lengthy) provisions of the regulations are:
- average working time (including overtime) does not exceed 48 hours per week
- ensure that night workers' normal hours of work do not exceed eight hours per day on average
- Allow workers the following rest periods unless they are exempt, in which case compensatory rest will usually have to be given:
- 11 hours' uninterrupted rest per day;
- 24 hours' uninterrupted rest per week (or 48 hours' uninterrupted rest per fortnight); and
- a rest break of 20 minutes when working more than six hours per day.
- Ensure that no night worker doing work involving special hazards or heavy physical or mental strain works for more than eight hours in any day
- Ensure that all night workers have the opportunity of a free health assessment when starting night work and at regular intervals thereafter
- Give workers "adequate" rest breaks where the pattern of work is such as to put their health and safety at risk, in particular where work is monotonous
- Keep and maintain records showing whether the limits on average working time, night work and provision of health and safety assessments
The last of these points is the focus of the recent ECJ decision in Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE. The approach that the UK took to the implementation of the requirement to maintain and keep records of the working hours of their employees (and workers) has been relatively ‘light touch’. Regulation 9 of the regulations simply require employers to keep “adequate” records. And you will note that there is no requirement to keep records in connection with rest breaks at all.
The Obreras case has cast significant doubt on this light touch approach by the UK. In this case the ECJ ruled that employers may be required to:
- Record the actual number of hours worked each day; and
- That the requirement to record hours was not limited to night work and average working time (over 17 weeks)
This decision will quite rightly worry employers. There is a risk that the administration record keeping of hours of work (and rest breaks) could significantly increase. However, there are two important factors to consider which may avoid this becoming a mandatory requirement for UK employers. The Obreras case was a Spanish case and under Spanish law there is no requirement for employers to keep any records. This context is likely to have been significant in the decision making of the ECJ and therefore there is a distinct possibility that the provisions in UK law are already sufficient.
And of course if we exit the European Union……
57. In the first place, I must observe that, in the absence of such a system, there can be no guarantee that the time limitations laid down by Directive 2003/88 will actually be observed or, consequently, that the rights which the directive confers on workers may be exercised without hindrance. 58. Indeed, in the absence of any system for measuring working time, there can be no way of establishing objectively and with certainty how much work has actually been done or precisely when it was done. Moreover, without such a system, it will not be possible to differentiate between ordinary working hours and overtime or, consequently, to verify with ease and certainty whether the limits introduced by Directive 2003/88 are being observed in practice.