Do we need to be record keepers not record breakers?

A Spanish trade union has brought a recent case to the European Court of Justice (ECJ) arguing that an employer is required, in accordance with the ‘working time directive’, to keep accurate records of employees’ actual working time.

Not surprisingly, the employer in question, Deutsche Bank, disputed this, no doubt mindful of the cost and time such systems would incur for the company.

The ECJ, however, agreed with the trade union. They argued that it would be impossible to determine “objectively and reliably either the number of hours worked by the worker [or] when that work was done” without some sort of record keeping.

The ‘working time directive’ (applied into UK law by the Working Time Regulations 1998 “WTR”) currently requires employers to keep adequate records to show compliance with the 48-hour limit of the average working week and working time for young workers and night workers (Regulation 9 under the WTR). There is no specific requirement for all daily hours to be measured and recorded and likewise with rest periods. The ECJ ruled that the directive should be interpreted in this way, considering the express provisions of Article 31(2) of the European Union Charter of Fundamental Rights that limit workers’ daily and weekly hours and protect their rest periods. They surmised that it is impossible to ensure these restrictions unless there is some intentional record keeping and hence this should be read into the directive.

Following the ECJ’s ruling, the UK is technically required to amend the WTR to make our legislation compatible. That said, given the uncertainty with Brexit, it is unlikely that any changes to the WTR are going to be made any time soon! In the meantime, employers should be mindful of the current requirements;

• Regulation 9 WTR – employers must keep records that are “adequate” to show whether there is compliance with the limits relating to the 48-hour week and working time of night workers and young workers;
• The Health and Safety Executive does not require any specific records be kept for the purposes of working hours but is happy to rely on existing records, i.e. payroll to monitor working time; and
• Any other time recording as requested by any regulatory bodies, i.e. the Care Quality Commission, local authorities, Ofsted, etc.

It is in an employers’ best interest to keep working hours records that will enable you to prove that you have discharged your liability to pay the National Minimum Wage (NMW). The burden of proof in NMW claims sits with the employer, with the effect that courts must presume that a worker has been paid at a rate below the NMW, unless the employer can show otherwise. In any event, there are criminal offences under the NMW legislation associated with failure to maintain records to show NMW compliance.

We would advise that once employers have met the requirements above, they do not at this current time need to introduce new systems intended only for time recording under the WTR.  We will, of course, update you if this advice changes in light of political shifts.

For more information

We have worked with a significant number of providers assisting them to ensure WTR and NMW compliance – including undertaking audits of existing arrangements and assisting with the implementation of the new ways of working. If you require advice on this issue, please contact Matt Wort.

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