Record working hours EU court tells employers

As the EU court rules that employers must keep track of working hours, experts raise issues over tracking commuting time and work done from home

All employers must set up a system to keep track of employees’ working hours, the Court of Justice of the European Union (CJEU) has ruled.

This is to ensure they are not working more than 48 hours per week and are taking breaks. In the case of Spanish trade union Confederación Sindical de Comisiones Obreras (CCOO) vs Deutsche Bank, the CJEU said that employers must accurately record all working hours to ensure they are complying with the law.

Under existing Spanish law employers are only required to keep a monthly record of overtime for each worker. But the court heard evidence that records were not accurate and that more than half (54%) of overtime was not being recorded.

The judgement ruled that employers need an accurate system to measure time worked each day to give workers “proof” that their rights are being breached and to assist “competent authorities” and national courts to enforce those rights.

In the UK employers are required to keep 'adequate' records to show that workers are not putting in more than 48 hours a week and that night work rules are complied with. However, they do not explicitly require employers to record data to prove daily and weekly rest periods are met.

Alan Price, CEO of BrightHR, explained that employers do have the freedom to decide how to record this information. “Without strict rules in place about how to record it will be up to employers to choose – whether they do it online, through a clock in or out system, or using paper records,” he said.

Price added that employers should consider flexible working policies and time spent working remotely on commutes, as this could complicate the law: “Possible issues with this ruling include the recording of hours that are worked by employees outside of their normal working hours.

"For example: does time spent answering emails on the commute to work, or completing tasks from home after the working day ends, need recording? If so how can an employer ensure its records are accurate if it is unaware that such work is being carried out? Employers will also need to ensure any flexible working policies in place, such as flexi-time and voluntary overtime, are being operated properly and in line with working time rules.”

The British Chamber of Commerce's director of policy Mike Spicer agreed. “The changing nature of the UK workforce, with increased home and remote working and flexibility, means that direct supervision is often challenging, and relies on a degree of trust between employee and employer," he said. "If this is to avoid being eroded, it is vital that the government commits to engaging with business communities to see how this can work in practice.”

Brexit could lead to further rule changes around working time, Price highlighted. “Even though the UK is in the process of leaving the EU the CJEU ruling is binding on UK courts and will be applied going forwards. There is the potential, however, that working time rules may be amended once Brexit takes place. As the law on working time records has not yet been changed employers can decide to start recording all working hours in line with this decision,” he said.