While the UK remains a member of the EU the decisions of the ECJ on employment law will be binding on UK employers/the Government (depending on the circumstances). Indeed, as I have discussed before, even after the departure the decided cases of the ECJ are likely to be binding after Brexit.
Last week the ECJ promulgated its decision in the case of Confederación Sindical de Comisiones Obreras (CCOO) v Deutsche Bank SAE , a case which brought by a Spanish Trade Union. The basis of the case was that CCOO asserted that to comply with its Working Time Directive obligations an employer must record all the time that an employee worked. If it did not then how can the employer show it has taken all necessary steps to ensure its workers were not working excessive hours? The court heard evidence that 54% of overtime that was worked was not recorded by employers.
The ECJ found agreed with the CCOO’s arguments and, in a key passage, noted that:
The classification of hours as ‘overtime’ presupposes that the amount of time worked by each worker concerned is known and therefore measured beforehand. The requirement to record only overtime hours worked does not therefore provide workers with an effective means of ensuring, first, that the maximum weekly working time laid down by Directive 2003/88 — which includes overtime hours — is not exceeded and, second, that the minimum daily and weekly rest periods provided for by that directive are observed in all circumstances. In any event, that requirement is not capable of compensating for the lack of a system which, as regards workers who have not consented to work overtime hours, could guarantee actual compliance with rules concerning, inter alia, maximum weekly working time.
The effect of the case is that in order to comply with the Working Time Directive and employer must have an effective system to monitor all working time of an employee, including all overtime, whether paid or unpaid.
In a UK context the Working Time Regulations (which give effect to the Working Time Directive) require an employer to maintain “adequate” records. It is clear that this should now be interpreted in line with the ECJ’s judgement here and that if all paid or unpaid overtime is not recorded then the records are not adequate. The Health and Safety Executive have responsibility for Regulation 9 (in which the record keeping requirement is set out).
For trade unions it strikes me this decision is provides an opportunity to press for better consideration on the amount of ‘off the books’ work an employer’s workers undertake. The TUC already have a work your proper hours day but this allows unions to lobby employers to ensure that these records are maintained and shared with recognised unions. Not only will this assist in arguing for properly staffed workplaces but could, conceivably, also in the right cases also form the basis of so unlawful deduction of wages claims.
It is certainly the case that in many areas the actual work an worker does – whether paid or out of hours and even on holiday periods – exceeds that which they are contracted to do. This requirement to record all hours potentially provides unions with an organising opportunity to resist the long hours culture.