Landmark EU case puts proper tracking of employees’ working hours top of the agenda

This decision clarified that all 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 ramifications for employers here as it will have for employers in other European Union jurisdictions.

That said, the practical reality is that many Irish employers are not aware of their record-keeping obligations, never mind in compliance with them.

As more employers are moving towards accommodating employees with flexible and remote working arrangements, this case brings into sharp focus the obligations on employers in Ireland when it comes to recording employee working hours and the practical difficulties being experienced by many employers in complying with those obligations.

What was the case about?

Spanish working time legislation does not require employers in Spain to keep a record of daily or weekly hours worked.

A Spanish trade union 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 were being adhered to by employers: in this case, Deutsche Bank.

What did the court decide?

The European Court reiterated the “fundamental right of every worker” to have a “ceiling on the duration of a working week” in order to guarantee workers’ health and safety.

In Ireland, this ceiling is an average of a 48-hour working week.

The court emphasised that it would be “excessively difficult, if not impossible in practice” for workers to ensure their employer’s compliance with EU law if working time records were not kept.

The court agreed and held that employers are obliged to put in place an “objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured”.

The court commented that any “economic considerations” or costs associated with putting such a system in place cannot undermine the protection of employees’ health and safety.

What’s the Irish legal position?

Ireland’s current working time legislation already requires employers to keep records of “the days and total hours worked in each week by each employee” and to keep these records for three years.

This should mean that this recent European decision shouldn’t have any real impact on Irish employers.

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 with their existing obligations.

It could also result in increased inspections by the Workplace Relations Commission in sectors where it is suspected there may be a deficiency in working-time record-keeping practices.

There have been a number of cases in recent years where employers have been found wanting when it comes to record-keeping practices.

In last year’s Labour Court decision in Kepak v O’Hara, which resulted in an award of €7,500 to an employee, the Labour Court was particularly critical of the employer’s failure to keep proper records of her working hours.

Aside from the evidential difficulties that can arise for an employer in defending working time claims where they have not kept accurate working time records, an errant employer can also be criminally prosecuted for not maintaining such records.

There seems to be little acceptance in the recent case law of the fact that accurate record-keeping of employees’ working hours is a complex task given today’s often fluid and flexible working arrangements.

This can result in blurred lines around the concept of “working hours”. However, this recent European decision copper-fastens employers’ obligations when it comes to recording working hours and certainly serves as a shot across the bow of those employers who are not currently recording employees’ daily and weekly working hours.

In circumstances where the European Court has already poured cold water on any concerns around the cost to employers of putting in place a system to record working hours, prudent employers are advised to review their approach to record-keeping as a matter of priority.

If the current system is not objective, reliable and accessible, employers would be well advised to take corrective action now.

This article first appeared in The Sunday Business Post on the 9 June 2019.

For more information on this topic please contact Ailbhe Dennehy, Associate, or any member of A&L Goodbody's Employment team.

Date published: 10 June 2019