09/09/2021

Is the Clock Ticking on Working Time Regulation as We Know It? EU Working on Reform of Working Hour Regulation

Working time records are generally thought of as a technical issue that has to be taken care of despite the fact that flexible arrangements and work results have become more important in modern working life than punching a time clock. However, the EU may be shaking up this status quo soon.

The EU’s Working Time Directive requires that working hours must be measured using a system that is objective, reliable and accessible to all relevant parties. Be honest, do you already know what that kind of system actually looks like?

I can reveal to you that not many people yet know exactly what these criteria mean in practice. Nevertheless, based on preliminary ruling C-55/99 of the Court of Justice of the European Union (CJEU), the working hours records of all employers should fulfil the above criteria. This preliminary ruling concerned a situation in which an employer had only recorded overtime hours, as it was the common practice in Spain. The CJEU ruled that this does not meet the criteria of the Working Time Directive and that all working hours must be recorded.

In January 2021, the European Parliament also approved a draft for what is called the Right to Disconnect Directive, which would incorporate these criteria into EU legislation. It is time to take look at these criteria and think about how your company’s working hours records will work in the future.

The EU’s Working Time Directive has not changed much since its inception in the 1990s, despite the fact that the amount of related case law has ballooned and working life has taken leaps and bounds towards more flexible working time arrangements in the intervening years. Compiling and updating case law into EU legislation is a typical practice in EU law, and it seems that this may finally be around the corner for the regulation of working time.

In the following, I cover the main features of a working time record that is compliant with the Working Time Directive and provide a few tips on how companies can prepare for possible changes to EU working time legislation.

Objectivity and Reliability of Working Time Records

According to legal scholars, the objectivity and reliability criteria are clearly intertwined. The objectivity requirement encompasses the recording of actual working hours as well as an objective process for collecting this information. The reliability requirement more strongly highlights avoiding and preventing working hour entries from being purposefully or accidentally manipulated in such a way that they become false.

Employers should keep the following things in mind:

  • Working time records should be based on data that is difficult to manipulate. Employees’ working time data should not be the product of a subjective assessment, for example, an employee’s daily estimate of their own working hours.
  • The traditional policy in Finland has been that working time records do not necessarily have to include the start and end times of work, but that the record must be a reliable report of performed working hours. This policy is problematic with respect to the latest interpretations of the Working Time Directive, because the CJEU has held that an employee’s daily working time must be measurable. According to the CJEU’s interpretation, this is the only way to ensure that the rest times and maximum working hours provided for in the Working Time Directive are complied with.
  • Any incorrect entries should be corrected in such a way that both parties participate in or are at least aware of the corrections. Agreeing these kinds of processes at the workplace in advance can help to avoid, for example, working hour disputes.
  • Systems for recording working times can be tailored to suit certain personnel groups, but this requires that employees doing similar work are treated equally.

Access Criteria at Workplaces

According to the CJEU, access to working time records is essential, particularly with respect to their function as evidence. There are many interpretations of this requirement as well, but employers should keep in mind at least the following:

  • Employees, employee representatives and occupational safety and health authorities must have access to working time records without the employer being able to decide or prevent access. However, access does not have to be available at all times to all parties and to the same contents, as I explain in more detail below.
  • The employer also has to have access to working time records in order to monitor statutory rest times and maximum working hours. This is particularly important when employees who are working remotely make working hour entries.
  • Based on practical considerations, it is not necessary to give both of the parties to the employment relationship as well as the occupational safety and health authorities equal access to the same working time records at all times. However, parties with a right to access the data must be able to access it on relatively short notice and at regular intervals. The shorter the interval, the smaller the risk that people will forget data or make incorrect entries.
  • A wide range of opinions have been presented on the time span for making working hour entries, but a generally accepted compromise is making entries within a week of the work performance. One way for employers to improve their responsibility is to have working time records that update in real time, in other words, have a system that records starting and ending times and provides access to the relevant parties immediately.

You Don’t Have to Give Up All Your Tried-and-True Practices

To be clear, it is worth noting that it will very likely remain possible to instruct employees to make working time entries, though the employer’s obligation to maintain working time records cannot be delegated. Workplaces also do not need to give up, for example, trust-based working hour models and flexible working time arrangements as long as they comply with current legislation.

It is also un likely that changes will be made to national legislation concerning working time records before a consensus on potential amendments is reached on the EU level. To this end, European labour market organisations have begun bilateral negotiations that are set to continue until 2024.

Could Proactive Workplaces Find a Working Time Record System Suited to Hybrid Work?

On the other hand, even if the EU’s working time legislation isn’t amended for years to come, working time arrangements may need to be updated at workplaces simply due to the increase in hybrid work. Given that the latest Working Time Directive was enacted in 2003, concepts like home office work, shared work stations and crowdworking cloud services were not part of the discussion at the time. Some legal scholars have said that we are currently shackled to an ‘antique’ and ‘conservative’ Working Time Directive, which presents obstacles to developing new practices.

If the goal of European labour market organisations is to increase flexibility in working life, achieving this goal will require a complete overhaul of the EU’s Working Time Directive. However, workplaces can take active and responsible measures now to influence, for example, what kinds of working time practices will be adopted to increase the flexibility of working life. The first step could be the kind of system for recording working time as described in the CJEU preliminary ruling C-55/19, which is a good fit also for hybrid work.