How should employers record working time?


Employers should accurately record daily working hours to comply with the EU Working Time Directive on maximum weekly working time and daily and weekly rest breaks according to a recent decision of the European Court of Justice (ECJ).  The ECJ agreed with the earlier Advocate General's opinion that employers should be required to establish "an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured."  The rationale for this decision does make some sense albeit that it does appear to place an onerous burden on employers.  The ECJ concluded that in the absence of such records kept by the employer it would be 'excessively' difficult, if not impossible, for individuals to ensure compliance with the limits in the Working Time Directive.

This decision goes further than the current requirements of UK law.  The Working Time Regulations 1998 (WTR) require employers to keep 'adequate records' to demonstrate that workers (who have not opted out) have not worked in excess of an average of 48 hours a week and that the rules on night work are being complied with.  Compliance is measured over a 17 week reference period.  There is no express requirement under the WTR to (a) keep records of daily rest breaks and rest periods, or (b) record all daily hours of work.  The existing Health and Safety Executive guidance is that specific records are not required and records used for other purposes, such as payroll, can be used instead.

The ECJ decision suggests that the WTR do not adequately implement the Working Time Directive (in the same way as some of the holiday pay cases).  The government may look to amend the WTR in order to avoid the risk of a claim for failure to transpose the Directive but that is likely to depend on our future relationship with the EU, post-Brexit.  The position is going to remain uncertain in the near future.  That said, it may be harder for an employer to defend a claim for breach of working time limits in the absence of "an objective, reliable and accessible system" which records all hours worked.  It is also possible that Tribunals may seek to interpret the WTR in a way which creates an obligation to keep such records in a similar way to that in which they have interpreted the holiday pay rules.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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