The time clock has been a prominent feature in factories since it was invented in 1888, and while many workers — including temporary workers — still use more modern methods to track time, a recent European court ruling may lead to mandatory time-recording by all employers. While of course many employers do track time for business reasons, they have not been required to do so.
In a recent case brought by a Spanish trade union, the European Court of Justice held that, to comply with the limits set by the EU Working Time Directive for the maximum weekly working time and daily and weekly rest, member states must require employers to set up a system for measuring the actual daily working time for individual workers. Member states have a discretion to define the specific arrangements for implementing such a system taking into account the characteristics of the sectors or undertakings concerned.
In the case, Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (C-55/18), the union had argued that there was an obligation to set up such a recording system under both national law and European law according to the Charter of Fundamental Rights of the European Union and the Working Time Directive. The National High Court considered that the existing interpretation of Spanish law deprived workers of essential evidence for demonstrating that they had worked in excess of maximum working time limits. As a result, Spanish law did not comply with the obligations laid down by the Working Time Directive or the directive on the health and safety of workers at work. Accordingly, the matter was referred to the European Court of Justice for a preliminary ruling.
Protecting workers. The essential objective pursued by the Working Time Directive is to ensure the effective protection of the living and working conditions of workers and better protection of their safety and health, the court noted. Member states are therefore required to ensure that the effectiveness of those rights is guaranteed in full, by ensuring that workers, who are the weaker party in the employment relationship, benefit from the minimum daily and weekly rest periods and the limitation on average weekly working time laid down in that directive.
In the European Court of Justice’s view, without a system that reliably records the working hours of the individuals within the business, it is very difficult, if not impossible, for workers to ensure their rights are complied with. To ensure the effectiveness of the rights provided, the court has ruled that EU 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.”
Rest break snags UK opt-out. This ruling has implications for employers across Europe  and make the recording of working time and record-keeping requirements more onerous across all EU member states, including the UK. Unlike most other European member states, workers in the UK can opt out of the maximum weekly working time limits by signing 48-hour week opt-out agreements. However, there is no right to opt-out of rest breaks and the court judgment means that the UK’s Working Time Regulations do not adequately provide a mechanism for protecting an employee’s right to minimum rest breaks.
No Brexit relief. As the UK government has indicated that it intends to guarantee that UK workers’ rights keep pace with those provided by European law even after Brexit, UK courts will have to consider this judgment in cases involving the observance of weekly working time limits and rest breaks.
As it stands, employers should implement a system to objectively record all their workers’ daily working hours. Employers should consider how they can collect the data needed to allow more detailed records of working time to be kept in a practical and cost-effective manner. The flexible work sector has already embraced technology to facilitate flexible and agile working solutions, but soon this could be a reality for full-time employees as well.