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Michael Farrier
Michael Farrier,
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Employers must record working time: Judgment from the Court of Justice of the European Union
21 May 2019

Co-authored by Rachael Brenchley, Trainee, Employment Team

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 have an opt-out from that. Studies have shown that long working hours can increase the prospect of employees suffering poor mental health, and in addition, 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 being 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 brought before it as a reference from the Spanish Courts. One of the trade unions 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 had delivered an opinion in which he said:

“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 went on to note that there was not an express obligation to do this in the Working Time Directive but “it was essential to the attainment of the objectives which the directive pursues...”

The CJEU followed the Attorney General’s ruling and whilst noting the difficulties which might be faced by employers, 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 views of the CJEU are clear. Their decision required Member States who 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 to make provision for this 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 the 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 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' which show that they are complying with weekly working time limits and night work limits. However, this judgment clearly shows that this does not go far enough to ensure protection of fundamental health and safety rights. Therefore, UK legislation must be updated to be brought into line with EU legislation.

It was pointed out that the requirement to implement such a system could have substantial financial implications for employers. However, it was held that the protection of the health and safety of workers is more important than financial considerations.

It is for individual Member States to determine the specific arrangements for implementing the system. We shall have to wait to see how the UK decides to deal with this decision, 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 with regard to “long hours cultures”. There are foreseeable challenges for employers in complying with such an obligation; however this judgment demonstrates that employee wellbeing is paramount.

Understanding the implications of mental health wellbeing is key. Boyes Turner’s HR Training Academy is working with accredited mental health trainers to bring a range of courses and training opportunities for your people – at whatever stage your business is at – to help understand the issues, spot concerns early and help with the management of cases.

To book or find out more, please speak to Emma O’Connor – Head of Training – on 0118 952 7284 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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