Floating across my desk this morning is a press release from the European Court of Justice (ECJ).
It’s boring and not normally the kind of thing I look at unless it’s REALLY Important. The reason I was looking at this is because it is!
It affects me, and you, and your employer and anyone that works in Europe.
The offending press release issued on 14th of May 2019 relates to a Spanish trade union bringing a case against Deutsche Bank. The case, very simply, is about the Working Time Directive that governs employees in Europe.
The working time regulations stop employers making their employees work unreasonable hours. This ideology of the legislation should be commended. Its aim is to prevent unscrupulous employers from taking advantage of their workforce.
This judgment takes the obligations of an employer to a whole new level.
It states that to ensure employers are adhering to the Working Time Directive, they must prove it.
How do you prove it?
By recording hours worked by your employees of course, and yes, this includes breaks.
In simple terms, the judgment means that it is not acceptable for an employer and employee to trust each other when it comes to the working time. It is not enough for the employer to rely on the working time stated in the contract and trust the employee to stick to it.
Press release states:
‘The Court recalls that the worker must be regarded as the weaker party in the employment relationship, such that it is necessary to prevent the employer from being in a position to impose a restriction of his rights on him.’
What does this mean?
Cynically it means you can’t trust each other to stick to your contract of employment, you must prove it. This means every day/week/month providing a timesheet, app, Morse code, smoke signal or other form of documented time recording in a format that is agreed by:
- The employer and employee
- The government in the country of work
- The ECJ (unless it’s not, but they won’t tell you for five years.)
- Probably Mark Zuckerberg ……
So really, we don’t know what it means – nobody does right now.
What we do know is the court has left the detail to 27 different member state governments to check they are playing by the rules. I would suggest that the 27 members states will not be playing by the rules – they did not know it was a rule until the court ‘clarified the rule’ in this judgment. (Dare I say, the ECJ only just made this rule up??)
We also know that anyone employing in Europe without recording working time is effectively breaching the Working Time Directive. Well, aren’t we all naughty?!
Moving forwards, I expect countries like Germany to implement a robust framework (and probably a separate government department to police it) with a uniform system so it’s the same across the country.
France is probably already compliant as you tend to spend half your working week making sure you record your working time to ensure that you get your RTT pay, extra holidays and work no more than the 35 hours a week. Luckily, capital punishment was abolished in 1981 in France, otherwise working 36 hours or more would probably still be worthy of the guillotine.
In the UK, the response will be to ignore it. What do they care? They are leaving Europe anyway. Until in 18 months’ time when the paralysis of ‘Brexit’ becomes too much and Europe decides to militarily annex the UK for its own good. At which point Germany will sell a lovely tried and tested timesheet system to the UK to ‘ensure compliance’.
The other 24 countries will decide it’s a silly rule and ignore it OR decide it should follow Germany’s lead that it is vital OR do something in the middle.
I guess the middle would look a little like this – the employer must provide a form for the employee to fill in – the employee never does. But both parties are happy as the ‘ability’ to record time has been provided although no one ever uses it. Paperwork and jobs are created across Europe, everyone is compliant and happy, boxes ticked, red tape created – job done. (Where is the value??)
If you want some help dealing with this madness when employing in Europe, please reach out to us.
If you would like to read more about this, the press release can be found here.
If you prefer the DIY approach and want to manage this yourself the full judgment is below – if you are considering this can I suggest you look at this article before you make that (crazy?) decision.
Don’t do it yourself!
If you are a true legal stalwart, the full judgment can be found here: ECJ Ruling