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European court tells employers to properly measure length of time staff work

The Court of Justice of the European Union (CJEU) has today handed down an important judgment about working time in the case of CCOO v Deutsche Bank SAE.

UK employers must now take steps to make sure their staff are not exceeding the 48-hour maximum working week and are taking adequate rest breaks.

The case was brought by a Spanish Trade Union (CCOO). It wanted a system for recording how long its members worked each day, including the number of hours worked overtime, so that it could verify that these complied with their stipulated working conditions.

Under Spanish law, employers only have to keep a record of overtime hours worked by each worker at the end of each month. The court was given evidence that these records were not accurate and that 53.7% of all overtime worked was not recorded.

The CJEU made it clear that all workers had a right to limit their working hours and to take adequate rest.  It said that the only way to ensure that these rights were met was to accurately record the number of hours worked, when that work was done and the number of hours of overtime worked. 

According to the press release, employers need an accurate system to measure the time worked by workers each day to give workers ‘proof’ that their rights were being breached and to assist ‘competent authorities’ and national courts to enforce those rights.

In the UK, under Regulation 9 of the Working Time Regulations 1998, employers have to keep ‘adequate’ records to show that workers are not working in excess of 48 hours a week and the rules around night work are complied with.  They don't explicitly require employers to record data to show that daily and weekly rest periods are met.

Records have to be kept for at least two years. These rules are enforced by the Health and Safety Executive. Employers that breach them can be prosecuted and fined.

Sybille Steiner, an employment partner at Irwin Mitchell, said, “This decision is binding in the UK and will affect those employers who do not accurately record the numbers of hours their staff work - whether these are paid or unpaid.

“This decision arguably goes further than our laws require and employers should make sure that the systems they use to measure working time are ‘objective’ and ‘reliable’ and reflect all hours their staff work - not just those set out in their contracts of employment.”

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