As you may be aware, the Working Time Regulations 1998 seek to implement into English law the obligations set out in the EU-wide Working Time Directive. Both the regulations and the directive contain a variety of rules relating to the hours that businesses can require their employees to work.  

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A problem identified in the recent Spanish case of Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE is that many businesses don’t keep an accurate record of the hours their employees actually work. If this is the case, how can we be sure that businesses are complying with the law?

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Further recording keeping obligations on the way?

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A senior legal officer at the European Court of Justice has now published his opinion of the issues raised in the Deutsche Bank case. Advocate General Pitruzzella is of the view that in order to comply with the law, employers must keep records of the actual time worked by their employees.  Admittedly, the Advocate General's opinion is not binding law; it will be for the ECJ judges to make a final decision. However, an opinion of this nature is likely to be very persuasive.

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So what?

The Working Time Regulations 1998 already require employers to keep ‘adequate records’ to demonstrate their compliance with some aspects of the regulations. However, current guidance (including that issued by the Health and Safety Executive) does not require employers to maintain the level of information now suggested by the Advocate General’s opinion. If the ECJ judges themselves end up agreeing with Mr Pitruzzella, we may have to reconsider whether the law in the UK requires amendment and whether businesses need to increase the range of information they store about the hours their employees work.

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