Recording “Working Time” – New EU Decision Clarifies the Law

by Ailbhe Dennehy, Associate in A&L Goodbody’s specialist Employment Practice Group

Last week the European Court of Justice (the CJEU) delivered a significant judgment that all employers need to be aware of. In short, the CJEU held that employers must have a suitable system in place to ensure they are recording employees’ daily and weekly working hours.

As Ireland’s working time legislation already requires employers to keep such records, this case may not have the same impact in this jurisdiction as other European Union jurisdictions. Notwithstanding our legislative position, the reality is that many employers are not aware of their record keeping obligations, never mind in compliance with them. Furthermore, the trend towards more remote and flexible working, reflective of the “digital” workplace, raises a number of issues for employers including how to keep proper records of employees’ working time.

What was the case about?

Spanish working time legislation requires employers in Spain to keep a record of monthly overtime hours. Employers are not required to record daily or weekly hours worked.

In the case of C-55/18, a Spanish trade union (CCOO) sought a declaration from the Spanish High Court that Deutsche Bank was required to keep a record of the actual number of hours worked by its staff. CCOO argued that such records were necessary to enable it to verify that working time limits set down by the EU Directive on Working Time and EU Charter of Fundamental Rights (the EU law) were being adhered to.

The Spanish High Court referred a question to the CJEU as to whether Spain’s working time legislation, which purported to implement the relevant EU law, should require employers to keep records of daily and weekly working hours.

What did the Court decide?

The CJEU determined that the EU Working Time Directive must be interpreted “having regard to the importance of the fundamental right of every worker to a limitation on the maximum number of working hours and to daily and weekly rest periods“. The CJEU observed that the Directive is intended to “guarantee better protection of the safety and health of workers” by ensuring they are entitled to “adequate beaks” and by imposing a “ceiling on the duration of a working week“.

The Court addressed what steps employers should take to ensure these fundamental rights are adhered to. The CJEU held that member states are required to “take the measures necessary” to ensure workers receive relevant rest breaks (each day and week) and that there is a cap on the maximum weekly working hours.

The CJEU emphasised the onus is on employers to put in place a “system” to record daily and weekly hours worked. The Court confirmed that it would be “excessively difficult, if not impossible in practice” for workers on their own to ensure compliance with their rights under the EU law. Rather, it is for employers to put in place an “objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured“.

Finally, the Court commented that any “economic considerations” or costs associated with putting such a system in place cannot undermine the “effective protection of the safety and health of workers“.

What’s the Irish law position?

Ireland has implemented the EU Working Time Directive by way of the Organisation of Working Time Act 1997 (as amended) (the OWT).

When it comes to keeping records of employees’ hours of work, section 25 of the OWT is read alongside the OWT (Records) Regulations 2001. In short, employers are required to:

• keep records of “the days and total hours worked in each week by each employee”
• where no “clocking in” facilities are utilised or electronic records kept; record such hours via a template form (Form OWT1)
• retain records at the employee’s place of work for a period of three years

What does this mean for employers in Ireland?

As Ireland’s working time legislation already requires employers to record employees’ working hours, we do not anticipate any immediate action being taken by the Irish government to amend the OWT in light of the CCOO case.

However, this decision is likely to bring into focus the fact that many employers in Ireland do not have systems in place to ensure they are complying their existing obligations. It could also result in increased inspections by the Workplace Relations Commission of employers in sectors where it is identified there is a deficiency in working time record keeping practices.

It’s noteworthy that there have been a number of cases in recent years identifying failures on the part of employers to keep adequate records. These resulted in technical (and culpable) breaches by employers of the OWT.

Last year’s Labour Court decision in Kepak v O’Hara resulted in an award of €7,500 to an employee. In that case the Court was particularly critical of the employer’s failure to monitor the employee’s working pattern and keep proper records of her working hours. The failure to keep working time records gives rise to an evidential problem for employers when looking to defend statutory working time claims (e.g. employees were not afforded requisite breaks etc.). There is also potential exposure to a criminal conviction and fine of up to €2,500 for failure to keep such working time records.

Accurate record-keeping of employees’ working hours is a complex task given today’s fluid and flexible working arrangements. This can result in blurred lines around the concept of “working hours”. However, this recent CJEU decision copper-fastens employers’ obligations when it comes to recording working hours. In circumstances where the CJEU has already poured cold water on any concerns around the cost to employers of putting in place an “objective, reliable and accessible system” to record working hours, prudent employers are advised to review their approach to record-keeping. Where it does not comply with the OWT, employers must consider taking corrective action now.

About the author
Ailbhe is an Associate in A&L Goodbody’s specialist Employment Practice Group in Dublin, Ireland. She advises both private and public sector, domestic and international clients in relation to a variety of contentious and non-contentious employment law issues. On the non-contentious side, Ailbhe regularly advises employers on the drafting of contractual documentation and policies, as well as guiding employers through complex employee management issues. Ailbhe frequently provides strategic and practical advice to clients in respect of individual and collective redundancy procedures and employment aspects in the context of corporate restructurings, outsourcings, mergers and acquisitions. On the contentious side, Ailbhe has acted for a range of clients in respect of unfair dismissals, discrimination, personal injuries, and employment-related injunctions and has represented employers before all fora. Ailbhe has also participated in a number of alternative dispute resolution scenarios. Ailbhe has advised and supported clients in crisis situations involving strikes and other industrial action.