Some thoughts on the CJEU‘s working time decision

Tom Hayes of BEERG writes: In recent issues of this newsletter we have carried a number of articles on the decision of the Court of Justice of the European Union (CJEU) In Case C?55/18, that governments should ensure that legislation is such that companies are obliged to record all time worked by employees to be compliant with the 2003 Working Time Directive (WTD). A useful round up of existing national laws can be found here.

The judgement will require governments to review and update their working time laws, if necessary. We could be looking at 28 (soon to be 27?) working time regimes as regards recording working time across Europe.

We will be discussing the implications of this decision at this week’s BEERG Network Meeting in Sitges, Barcelona. In anticipation of that discussion it seems to me that the CJEU decision may have more far-reaching consequences than yet realised.

If all working time is to be recorded then the question has to be asked: what is work and what time is to be recorded? The 2003 Directive says:

‘working time’ means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice;

While “national laws and/or practice” might seem like a “get out of jail card” keep in mind that such laws or practice cannot be such as to deprive employees of rights given to them by the Directive.

Further, that employees often work “out of hours” has been admitted in a number of countries with the adoption of “the right to disconnect” laws. As Sarah King of Excello Law notes  there have also been recent court judgements on the issue.

The first decision came in July when the French arm of Rentokil Initial was ordered by France’s Supreme Court, the Court de Cassation, to compensate a former employee to the tune of €60,000. This payment was awarded because the company had failed to respect his ‘right to disconnect’ from his computer and phone outside normal office hours.

Following the French decision, the Labour Court in Ireland awarded €7,500 to a female employee who regularly had to reply to work-related emails outside normal office hours. The Court ruled that by sending and receiving emails in this way, she had surpassed her statutory maximum working hours. Her employer had therefore ‘permitted’ her to work excessively in failing both to monitor her pattern of work and to keep proper records of her long working hours.

King notes that this was judged to be in breach of Irish law, specifically the Organisation of Working Time Act 1997 (OWT), which requires that employers must not permit an employee to work beyond an average of 48 hours a week. It also mandates employers to keep records which comply with the Act for at least three years after the date that the record was created.

So, being connected “out of hours” is clearly regarded as working time. Does the CJEU decision require that all such “connected” time now be recorded? It seems to me that if it is working time then it must be. If employees leave their phones or laptops on are they to be regarded as working, whether or not they answer calls or emails?

How is time on business trips to be regarded? If “connected time” is working time, and if an employee is connected while on a business trip, is the entirety of time spent on the trip to be regarded as working time? Common sense would say no, but then there is no obligation on judges to take common sense into account.

All employees fall within the scope of the WTD with just three exceptions:

a)     managing executives or other persons with autonomous decision-taking powers;

b)     family workers; or

c)      workers officiating at religious ceremonies in churches and religious communities.

Clearly, (b) and (c) don’t apply in the vast majority of cases. So, how are we to understand “managing executives or other persons with autonomous decision-taking powers”? We are not aware of any court, and especially not the CJEU, which has, to date been asked to rule on the proper interpretation of these words. So, whether this derogation is to be construed narrowly or expansively remains unknown.

While companies will be tempted to interpret it as expansively as possible, all it takes is for one employee to go to court to argue that their employer has been abusing the derogation for the floodgates to potentially open and claims for compensation to pour through.

It is worth noting that in its judgement the CJEU said (at 44):

In that regard, it must be recalled that the worker must be regarded as the weaker party in the employment relationship and that it is therefore necessary to prevent the employer from being in a position to impose a restriction of his rights on him

This suggests that in such cases the court will always leans towards what it sees at the rights of the individual employee.

The WTD was first tabled over 30 years ago. It was adopted in 1993. Think back to those days. Mobile phones were the size of a concrete block. Apple released its first laptop, the Macintosh Portable, in September 1989 which cost $6500 at release. In 1995, only 0.04 percent of the world's population had internet access, with well over half of those living in the United States and to connect you needed a dial-up modem.

The WTD was drafted before any of these technological wonders became everyday realities. It is an industrial age law entirely unsuited for a networked and “always-on” world. Laws which are out of synch with reality bring the law into disrepute.

What to do now? Check how you record working time across Europe to identify any potential future exposures.