Julie Dunane CG Professional

Are you keeping employee records?

Julie Duane, Solicitor Advocate at CG Professional.

To what extent must employers monitor their employees? Following the Court of Justice of the European Union (CJEU) it has been held that Member States are required to set up a system to measure the of daily working of its employees.

In Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE the European Court of Justice (ECJ) held that employers must ensure that they have a system of measuring daily working hours for all its workers.

The ECJ held that in order for employers to comply with the Working Time Directive on the maximum weekly working time and daily and weekly rest breaks, employers should ensure that they have an “objective, reliable and accessible system” enabling the duration of time worked each day, by each worker, to be measured. Employers will be aware that there is a limit on the average weekly working hours (48 hours), along with their entitlement to daily and weekly rest breaks. This is dictated by Article 31(2) of the EU Charter of Fundamental Rights.

The ECJ has criticised employers who fail to have effective provisions in place as it makes it “excessively difficult, if not impossible in practice to ensure that workers’ rights are complied with” and could therefore leave the employers susceptible to breaches of health and safety.

As such regulation 9 of the Working Time Regulations 1998 (SI 1998/1833) (WTI) dictates that employers must keep adequate records in order to adhere to the 48-hour limit on the average working week, unless an optout agreement is signed. Whilst current guidance by the HSE indicates that specific records are not required and that employees may able to rely on records maintained for other purposes, such as pay, the ECJ’s judgment questions the veracity of these practices. Employers now need to consider the possibility that HSE and the courts may start to apply a more purposive interpretation in future.

If you have any questions on recording an employee’s daily working hours, or another other employment related matter, please do not hesitate to contact a member of the CG Professional team who would be more than happy to help.